What is a social media Influencer?
An Influencer is someone who has a following in a distinct niche as a result of his or her authority, knowledge, position, or relationship with his or her audience. Due to this following, an Influencer has the power to affect the choice, opinion or behaviour of their followers, which includes purchasing decisions. As a result, Influencers are not merely marketing tools, but rather social relationship assets with which brands can collaborate to achieve their marketing objectives.
The broad definition of “advertising” in the Advertising Standards Authority (ASA) Code includes any Influencer content that is controlled directly or indirectly by an advertiser to promote a service or product, usually for payment. ‘Payment’ can be any benefit the Influencer may receive in exchange for the content they distribute including but not limited to: money, free product or service, credit, event tickets, travel, product loans.
Therefore, if you decide to engage an Influencer through this way, it pays to have a formal agreement in place to make sure the scope and intention of that relationship is clearly laid out, and to avoid the dangers of “rogue” marketing and the regulatory and reputational damages that may result.
What should I include in a social media Influencer agreement?
A detailed scope of work.
Your first priority should be to outline the scope of work to be performed, and what its purpose should be. This means specifying that this contract is entered into for the purpose of content creation or some other form of collaboration. Discuss if you’re going to use this as advertising on your own platforms/websites in addition to the Influencer’s pages.
Aesthetic and branding guidelines
It is usually desirable to give Influencers as much creative freedom as possible – because after all they have developed a following based on this. However, you also need to provide them with the parameters of how to use your brand. Usually this would be in the form of set brand guidelines, such as how to use your logo and other branding elements correctly. It also avoids potentially misleading or infringing others’ rights in the process.
Specify advertising platforms and consider content exclusivity / frequency
Be specific around what types of content you want the Influencer to promote and on what social media platforms. If they engage in a number of different platforms such as Instagram and Tik Tok (which typically have different audiences and user rules), choose the ones most relevant to your audience.
Consider frequency of posting and exclusivity. Often Influencers are promoting several products or services at once; however it can significantly reduce the effectiveness of the campaign when an Influencer promotes too many competing businesses. Likewise, your product/service may be at the forefront of their mind when they first sample the product/service, but then it falls by the wayside several months later and they decide to promote something else.
With Instagram posts, you might request a new photo each week for a month. A YouTube tutorial might need to go into production by a certain time, and any follow-up a couple weeks later. Whatever those parameters are around the deliverables, you need to specify them in the Influencer contract.
Specifics around posting – identification as an ad
Consumers should know it is advertising at their first interaction with the ad content. Labels or other means used to identify ad content must be obvious, clear, prominent and upfront and they must be separate from other disclosures, hashtags or links.
Every post that includes ad content and each segment of a story that includes ad content needs to be identified as advertising. Using hashtags such as #sp (sponsored) or #collab (collaboration) are no longer acceptable, as the meaning isn’t instantly obvious.
All parties to an ad – i.e. the Influencer, advertiser and other agents – are all responsible for making it clear the content is advertising. Therefore, to make sure nothing gets left to chance, be sure to include specific provisions around identifying advertising content to ensure compliance.
List of things you don’t want the Influencer to talk about or include in content
As with positive requirements, your Influencer contract should specify anything that you want them to avoid or imagery/branding that you do not want to be associated with.
Content approval
In some circumstances, you may want to approve any of the content prior to the Influencer posting it on their social media accounts. The process for such approval should be set out in the agreement.
This might be due to a number of factors, such as sensitive branding concerns or a recent history of your customers reacting badly to Influencer content. If you go this route, be sure to specify this as part of the Influencer contract. You’ll also want to make the approval process is as clear as possible to avoid any confusion.
Access to Influencer data
If you will require access to Influencer data other than the content piece, this also needs to be mentioned. For instance, some brands want social media login information so that they can see what notifications are being generated by the content. Other access requirements include Google Analytics, social media analytics, screenshots, and anything else that can help measure campaign success. Of course, printouts and emails with the same information may also be sufficient.
Compensation details
Central to any Influencer contract is the compensation details.
You will need to specify the agreed fee that the brand will pay to the Influencer, and how and when that payment will be made should be set out in the agreement. Payments can sometimes be linked to the completion of certain deliverables and this should be detailed in the agreement to avoid any disputes.
Be sure to specify how much an Influencer will be paid, and in what form (commission, flat fee, product, etc). Then, say how it will be paid out and when they should expect to get it. This way, everyone knows what’s expected and when.
Do you want the compensation details to remain confidential? Then specify this.
Include cancellation / grounds for termination terms
It’s important to identify when the rights and obligations commence and when they end. The agreement should have a commencement date and an end date, or at least a way for the parties to terminate the agreement.
While cancellation is rare, it’s important to include provisions for it. Especially with larger collaborations, unforeseen circumstances can cause your strategy to change before completion. Likewise, you might need to terminate a contract if the Influencer becomes a liability rather than an asset. Finally, the Influencer might have something come up which forces him or her to change plans.
Copyright / intellectual property rights / confidentiality
In this section, you need to talk about who owns the content. Is the Influencer retaining ownership while granting you exclusive rights to use it? Or do you own it, but allow the Influencer to use it? Depending on the circumstances, assignments and licences of intellectual property rights may need to be negotiated and set out in the agreement.
Also, you’ll want to ensure they don’t reveal any trade secrets or confidential information they learn during the period of your working together.
Boilerplate provisions
Boilerplate provisions are clauses or terms which commonly appear in commercial agreements. These can vary based on the type of collaboration, the Influencer involved, and other factors. Examples are clauses that deal with the right to assign the agreement to third parties, the relationship between the parties, and how and to where notices are to be delivered to each of the parties to the agreement.
Be sure to include these as part of the Influencer agreement, or you risk not being able to enforce the agreement. Many influencers will be familiar with boilerplate terms, in that they will have seen them before. Some boilerplate terms are usually necessary (for example, Confidentiality) while others (such as ‘Interpretation’) may be left out.
Executing the agreement
Once you are satisfied with the terms of your Influencer Agreement, you should ensure that the agreement is validly entered into by the parties. Ideally you should have each party physically sign and date the agreement and exchange it with the other party. The parties should also have someone witness their signatures if possible.
At James & Wells we can assist with the drafting and negotiating of social media Influencer agreements, or reviewing these for compliance.
