What are the legal issues to be aware of when hiring social media influencers for your brand?
To help you with best practices regarding social media influencers, we asked attorneys and thought leaders this question for their recommendations. From your brand’s representation by the influencer to steering clear of defamation, there are several legal situations you should be familiar with before contracting anyone to represent your company on social media.
Here are nine legal issues that may come up when hiring social media influencers:
Negative Brand Representation
Surprise Non-Compete Clauses or Unexpired Agreements
Violating an International Regulation
Failing to Disclose Paid Sponsorship
Not Aligning With Your Culture and Values
Misunderstanding Fair Use
Not Keeping a Well-Defined Legal Contract
Portraying the Wrong Message
Accidental Defamation
Negative Brand Representation
The most important legal consideration arises from the influencer’s representation of the brand to the consuming public. Statements made by the influencer, on behalf of your brand-company, are attributable to your brand.
This attribution takes various forms: a mere negative public perception of your brand (with no resulting civil liability, but certainly an impact on the business) to the imposition of an agency relationship between your company and the influencer leading to direct liability. Regardless of how the law treats your relationship with the influencer, be selective with who represents you. Review the influencer’s work and track record with past clients. Conduct an exhaustive internet search of their content. Ask for references and contact those persons. Do the hard work and work with the right influencer.
Robert Reder, Attorney, Blythe Grace PLLC
Surprise Non-Compete Clauses or Unexpired Agreements
Most social media influencers are yet to reach the stage where they build long-term relationships with brands. This means that when you hire a social media influencer for your brand, chances are high that they may have collaborated with similar brands or even your direct competition before.
From a marketing perspective, this hardly matters because influencers are known to look for lucrative partnerships within the same industry. From a legal point of view, however, it is crucial to take a second look at the paper trail left behind by these previous partnerships.
Red flags such as non-compete clauses or even agreements that are yet to expire may hinder your marketing efforts and even create legal hassles.
Riley Beam, Managing Attorney, Douglas R. Beam, P.A.
Violating an International Regulation
Social media influencers can have national and even international reach. If you plan to use an Influencer to do any form of advertising for your business, you need to be aware of the laws in every location where you have customers.
Not every place will have restrictions, but most assuredly some will. It will be up to your business to protect your customers and your interests in areas where your influencer advertises.
For example, if you’re planning to sell your product in the United States and Mexico, you'll need to make sure that both your advertising and your product meet the legal regulations in both places in the world.
Being uninformed won't be an excuse for your business if they break with regulations. You'll need to implement proper policies and protections to make sure you are following regulations everywhere you plan to advertise.
Boye Fajinmi, Co-Founder and President, TheFutureParty
Failing to Disclose Paid Sponsorships
While most Influencers stay on top of this themselves, it's important that any and all paid sponsorship be communicated clearly to audiences. Even if an influencer swears by the product or says that they'd speak well of it even if they weren't being paid to do so, we must clearly state it any time they advertise they are being paid to do so.
This isn't just for clarity; it is a legal matter.
The FTC requires that influencers disclose when they are being paid to endorse any brand. Companies are not off the hook if an influencer fails to disclose their being paid and can face just as much, if not more, legal trouble.
Any company working with influencers needs to make sure they are clearly disclosing this information every time. It doesn't matter if you come off as nagging if it will save you from any potential trouble.
Max Schwartzapfel, CMO, Schwartzapfel Lawyers
Not Aligning With Your Culture and Values
Any social media influencer you're working with needs to be in alignment with your company culture and its values, ethics, etc. Misalignment on these things between your business and any influencers you've partnered with could, at best, confuse customers, and at worst, offend customers to the point of a lawsuit.
You should think of any social media influencer as a face of your brand, and you must ensure they're representing you properly and appropriately.
Bradley Hall, Co-Founder and CEO, Sonu Sleep
Misunderstanding Fair Use
Influencers often wing it with their YouTube or TikTok or Instagram content. Often, they like to use songs, movie clips, or something else that puts them at risk for copyright infringement.
There are some Fair Use protections for certain content creators, but if the creator isn’t fully aware of them, that could lead to some issues. If your name is too closely associated with content that violates copyright law, that could put you in a vulnerable position, too. Be mindful of this when you choose social media influencers for your brand.
Trevor Ford, Head of Growth, Yotta
Not Keeping a Well-Defined Legal Contract
One legal issue to be really aware of when hiring social media influencers for your brand is related to the influencer agreement. You must have a well-defined contract that legally binds both you as the hirer and the influencer being hired for marketing and advertising purposes. Poor contracts lead to ambiguity in the rights and obligations between both parties with high chances of legal strikes filed by either of them in case any of the terms are intentionally or unintentionally violated or left unfulfilled. So, to avoid legal consequences, must ensure that you construct and review your influencer agreement with the influencer highlighting key terms like contract duration, influencer obligations, types of content creation, intellectual property rights, payment details, schedule of posting content, liability and/or loss clauses, compliance violation/failure, and anything else you deem necessary according to your partnership.
Portraying the Wrong Message
No matter your industry, social media is an excellent option to promote branding and draw in new clients. That said, there can be legal ramifications to presenting the wrong message.
For example, attorneys in most states can’t call themselves the “best” or an “expert.” Doctors have to be wary that an influencer doesn’t inadvertently reveal patient information. The list goes on.
Thus, it’s best to have a contract or some other official document that maps out the boundaries of what the influencer is and isn’t allowed to do.
Jay Stafford, Attorney, Law Firm of J.W. Stafford, L.L.C.
Accidental Defamation
Defamation is where content is published or broadcasted that damages a third party’s reputation. When working with influencers, it is crucial that both parties agree on what they expect from the partnership—this includes providing clarity on what’s not to be permitted within the confines of any content produced in collaboration with one another. The risk for defamation is increased on social media because it could occur simply by “liking” or “sharing” a defamatory comment made by someone else, especially in instances such as influencer marketing where this introduces a broad audience to the content.
Anything and anyone attached to your brand in any way that is associated with defamation could be damaging to your reputation.
Natalia Morozova, Partner, Cohen, Tucker & Ades P.C.
