From Love Island contestants and Premier League footballers to Hollywood A-listers, celebrities have an undoubted, almost inherent, ability to influence the general public. Whether the impressionable subject is a cohort of ‘regular’ individuals or, indeed, a corporate entity, the ability is unquestionable. Of course, this is not a novel concept—for decades, celebrities have occupied the pages of national magazines and tabloids. However, the mediums by which their influence may be exerted have changed drastically over recent years, leading to the exponential growth of the potential target market of impressionable subjects, in both number and the increased diversification of its demographic. As for whether we will see the ‘metaverse influencer’ promenading around sporting their sponsor's products any time soon, that is another question. However, for now, brands remain focused on the utility of social media influencers as we know them today.
This vast audience that social media has presented has naturally grabbed the attention of brands across a plethora of industries hoping to harness this relatively newfound marketing opportunity. The rise of the social media influencer is well documented, and brands were quick to respond to this new kind of celebrity, drawn by the promise of direct, instant access to their thousands or, in some cases, millions of followers.
» A well-drafted agreement is often the key to maximising engagement with a target audience and maintaining brand reputation—it will make it clear what is expected from both parties, avoid common commercial problems and ensure the campaign is conducted in accordance with any legal and regulatory requirements «
This led to somewhat of a gold rush, with brands snapping up influencers for campaigns often giving little regard to any legal formalities or regulatory responsibilities (to the extent any such responsibilities existed at the time). However, it is fair to say that the arena is now more established, with the advent of reliable performance metrics, specialist influencer agents, advertising regulations and codes of conduct for social media platforms. Given these developments, an organisation should take stock and consider whether it is maximising its engagement with this new method of marketing, as well as ensuring it does so in compliance with legal and regulatory requirements. With this in mind, there are a number of common questions and deliberations that every brand should think about when considering influencer partnerships.
Practical considerations
Every organisation will have its own idea of the ideal influencer, but some considerations crop up across the board:
- Reach: how many followers do they have? What is their frequency of engagement? Are their followers the right demographic? It is also worth considering if you can verify the influencer's metrics. It is not unknown for less well-known influencers to inflate their number of followers by using bots or buying large numbers of followers. Any reputable influencer should be able to provide metrics showing the number, location and levels of interaction of their followers. While accounts with large fake followings are easy to spot once you know what to look for, there are some tell-tale signs. Are there an unusual number of followers in low-income countries? Is there a lack of engagement by those accounts? Investing time in this validation process will help ensure that you receive maximum ‘bang for your buck’ by engaging with genuine, human followers
- Previous work: what other brands and in what sectors has the influencer promoted? Do you know the results?
- Risk: how likely is it that the influencer will act in a manner that proves damaging to the organisation? What happens if the influencer does something that causes reputational damage—for example, do you really want them to be smoking while promoting a product? Can you terminate if they do? It is important to bear in mind that influencers are, naturally, keen to create an impression. Unfortunately, this burning desire can sometimes lead to some profound lapses in judgement. From faking trips to exotic destinations to being culturally insensitive, there are many ways in which an influencer can suffer a fall from grace. While it can be almost impossible to pre-empt these blunders, it is important to consider how you will mitigate the damage your brand might suffer in such a scenario. While it is fairly uncommon for brands to sue for damages, you should ensure that there are wide rights to terminate your relationship
- Cost: how much will it cost you? While it will inevitably be a reflection of an influencer's performance against the above ‘metrics’, the fees charged by influencers can vary hugely.
Content
Ordinarily, it is expected that the influencer will be responsible for producing the content. Clients tend to have a common belief that this produces the most authentic content that stands the best chance of connecting with a target market. However, there are a number of points that a brand should consider.
Firstly, what has been the theme of their previous content, and will this complement your brand? Similarly, how much freedom as to the production of content do you want the influencer to have—do you want a right of pre-approval? Who will pay for any production costs? What rights do you want in respect of the content post campaign?
Next come questions about who owns the content? Generally, we would expect that the majority of the intellectual property rights in the content will vest in the creator (usually the influencer), with the organisation being granted a worldwide, irrevocable, royalty-free licence to use the content on their own platforms.
Lastly, there is the matter of longevity: how long do you expect the content to remain available? Are there to be a minimum number of posts or story lengths?
However, beyond engaging an influencer and their content ideas, firms also need to consider the social media platforms that the content will appear on, whether they will have either brand or sector exclusivity and, if so, for how long?
There are also issues to be resolved in relation to the freedom to use other influencers, as well as when payment must be made to the influencer. Is it before or after the campaign? Can you make payment conditional upon any other metrics being achieved, such as clickthrough, reach or sales?
Regulation #ad
The days of influencers releasing paid-for content with the unsuspecting follower being none the wiser are now long gone. Now, paid-for content falls under the remit of consumer protection law and nearly always will be covered by the regulations of the Advertising Standards Authority (ASA). Additionally, the ASA and the Committee of Advertising Practice (CAP) have rules regarding prescription-only medicines, as these are not allowed to be advertised to patients.
The key questions to consider here are whether the influencer's agent has provided suitable advice to their client to ensure compliance? Could their non-compliance affect you? Are there any platform-specific guidelines that influencers must follow?
Recently, the ASA has taken to naming and shaming those who have been found to be routinely breaching the rules. Those in breach will take pride of place on the ASA's website for 3 months and will be subject to spot checks and enhanced monitoring.
Certain individuals, including Chloe Ferry, Jodie Marsh and Lucy Mecklenburgh, have been contacted by the ASA and asked to provide assurances that they would include advert labels in their posts. Having decided not to provide any such assurance (or having chosen to renege on it), they found themselves on the ‘naughty list’.
While time is often of the essence when campaigns need to be rolled out on short notice, it is vital that you do your due diligence, check that the influencer does not have form and, finally, ensure that you have an agreement in place that documents the various rights and responsibilities in respect of regulatory compliance. Having a good influencer agreement in place is critical.
The influencer agreement
A well-drafted agreement is often the key to maximising engagement with a target audience and maintaining brand reputation—it will make it clear what is expected from both parties, avoid common commercial problems and ensure the campaign is conducted in accordance with any legal and regulatory requirements.
A sound agreement should be as simple and straightforward as possible and make it clear to both parties what is expected from the influencer, bearing in mind that they may not always have legal representation or advisers.
If you tend to work with influencers regularly on various different campaigns over a longer period, then it is worth considering using an overarching framework agreement. This will ensure that there is a defined set of overarching rights and obligations governing each engagement that will help save both time and money down the line.
In summary
It was almost inevitable that the influencer advertising market would mature into a regulated space. However, as with anything, this brings with it further obligations that the parties must comply with. The safest way to ensure compliance, as well as ensuring that the brand receives what it expects from the arrangement, is by concluding a well-drafted, clear and accurate agreement that underpins the partnership.