Social Media “Influencers” and the #Law
Bloggers, vloggers and social media personalities have increasingly dominated social media platforms over the last decade. With their powerful ability to influence public decision-making, agreements between companies and brand ambassadors (also known as “influencers”) can be extremely lucrative, for both parties involved.
From a legal perspective, companies looking to enter into an endorsement contract should conduct a thorough due diligence exercise on any prospective influencer, to prevent the possibility of any reputational damage. Companies should also ensure influencers are compliant with the requirements of the Advertising Standards Agency (ASA), the Competition and Markets Authority (CMA) and Trading Standards. Social media endorsements, which are a form of advertising, must be clearly identifiable as advertising and any failure to comply with legal or regulatory requirements could result in negative publicity.
On 6 February 2020, the ASA and CMA published a ‘new and improved’ version of their guidelines, the Influencers’ guide to making clear that ads are ads, which details how influencers can ensure they are transparent with their ‘followers’. Larger companies may also benefit from preparing a standard set of guidelines for social media, which can be used with numerous influencers, to clarify their preferred methods of indicating sponsored content. Practically, before entering into an agreement, companies will benefit from discussing candidly with influencers their reasons for a collaboration, and what freedoms and restrictions they expect the arrangement to have.
It is also important for companies to take ownership of any copyright, a statutory right which automatically arises under the Copyright, Designs and Patents Act 1988 in certain types of original work once created, which prevents others from dealing with such works without authorisation. However, companies should be mindful that its copyright in content posted by an influencer is likely to remain subject to a licence to the social media service provider (e.g. Instagram), whilst the content is on an influencer’s platform.