As marketing trends evolve and social media continues to gain ground as an indispensable channel of advertising, businesses must adapt and recalibrate their marketing strategies accordingly. However, one tactic that is becoming more common – retaining social medial "influencers" to post content promoting your product or services – can present a minefield of legal considerations.
For example, who exercises control over what is posted? To what extent can you prohibit the influencer from promoting your competitors? What sort of liability may such a relationship present? Failure to contemplate and thoughtfully address these issues may leave your business regretting its entire foray into the social media marketing space. In order to protect your company's interests, a comprehensive Social Media Influencer Agreement should be tailored to the needs of each individual company-influencer relationship.
Eight Things your Social Media Influencer Agreement Should Accomplish:
The following is a list of objectives that any Social Media Influencer Agreement should seek to achieve.
1. Your company must ensure it can maintain control over the review and approval process prior to the post going live. Nothing should surprise you when you see the influencer's post in your feed.
2. Your company needs to clearly establish that it is the influencer, and not your business, who bears liability for any violations of applicable law, Federal Trade Commission guidelines, or social media platform rules and policies.
3. The Agreement must ensure that the influencer has not misrepresented their social media reputation or past posting history.
4. The Agreement mustprotect the company's interests against future conduct by the influencer. Behavior that does not coincide with the company's image or core beliefs would not only diminish the value of the influencer's endorsements, but also place your business in a poor light simply by virtue of continuing its relationship with the influencer.
5. The Agreement must carefully contemplate language to protect the company from any misappropriation of third party rights or violations of intellectual property law by the influencer.
6. The Agreement must ensure that posts are not intertwined with derogatory, profane, or offensive content.
7. The Agreement must preclude influencers from contemporaneously posting content that promotes your direct competitors by employing non-competition provisions that are both valid and enforceable.
8. In cases where the influencer is retained to make a public appearance, the influencer must be held to certain standards, including interacting with your customers in a cordial and meaningful manner and treating your staff and vendors with the same degree of respect.
The use of any contract, including a Social Media Influencer Agreement, cannot guarantee that disputes will not arise the course of a business relationship; however, employing a written agreement that clearly defines the parties' rights and expectations may belie future claims against your company and ultimately serve to mitigate exposure.