Brand engagement, usually through a collaboration between a brand and social influencer or socially active brand ambassador is now arguably a mainstream marketing channel.
Influencers working with a brand or agency might be paid per post with the terms of the collaboration set out in a formal agreement, however, often the engagement is informal and ‘earned’. This means the influencer receives a sample of the goods or services promoted as ‘value in kind’ or a ‘gift’ in return for the content produced, although in this earned arrangement the content created and the flavour of the post is usually the ‘sole’ discretion of the influencer.
Whilst influencer discretion often promotes authenticity, the more informal the relationship with the influencer, the greater the corresponding lack of control and commercial risk for brands and agencies. As we have now seen with increasing regularity, getting the value in kind upfront unfortunately increases the risk that an influencer fails to post and/or becomes non-responsive.
In past articles we have considered transparency and disclosure obligations, the fake follower phenomenon, ‘influencer hijacking’ by brands who repurpose a social influencer’s intellectual property and the legal and regulatory frameworks for compliance. Now we turn to a discussion on disingenuous influencers.
A common example is where a loose arrangement between a brand and an influencer turns ugly because the influencer accepts a ‘gift’ or value in kind, but does not fulfil their side of the bargain and will not respond to any communications from the brand.
In late 2018 in the United States, influencer Luka Sabbat was sued by Snap Spectacles for failing to produce three Instagram stories and one in-feed post featuring their product for his 1.4 million followers after he was paid $60,000 to do so. However, few agencies or brands will escalate a dispute to the courtroom given the cost and adverse publicity this step can generate.
What can an agency or brand do once a product has been provided and the influencer doesn’t post promised content, doesn’t amplify content in the agreed manner, or the connection just goes dark?
When approaching social influencers and/or brand ambassadors, brands and agencies have various options. Both legal and commercial considerations should inform the influencer strategy that is used, to protect the agency and/or brand from investing in an insincere influencer.
Informal engagements via email, text or even social media are most common when working with micro-influencers for earned content. Therefore, it is important to understand that ‘gifting’ products or services to an influencer doesn’t guarantee performance. While many influencers receive and accept gifts, mere acceptance may not create a contract or promise, for example, to produce content for the brand. While there may be a verbal agreement in some circumstances, or an implied obligation to promote the goods, in the absence of a written agreement, there isn’t a lot the brand can do to enforce a promise even where deliverables were agreed in ‘good faith’. If a tactful follow-up does not produce a response it may be time to cut your losses and remove the influencer from your marketing strategy.
Where a brand has no “control” over the content and messaging produced, the resulting communication may not be considered to be advertising or marketing communications, and therefore, does not need to comply with the AANA Code of Ethics (see our articles). Some brands send unsolicited gifts to influencers knowing that the product may not be featured, because after making a commercial assessment, they consider the benefit of any consequential ‘organic’ content outweighs the lack of control over the images or statements the influencer might make, or the risk that the influencer does not return the love.
However, for many brands, where the risk of incorrect messaging may be greater, a more precise arrangement with the influencer is essential. In this scenario, it is important for a brand and agency to agree on specifics informally but in writing (e.g. by email or through a social platform) such as the preferred media, number of posts, a timeline for posts, relevant brand handles or hashtags, as well as any key messages or required disclosures for compliance with the AANA Code discussed above.
In any event, brands and agencies should conduct due diligence on their influencers before sending products and services. This includes looking at other products the influencer promotes (to ensure they are the right fit and there is no conflict) and checking their audience value (for example, active, organic followers as a proportion of the total audience).
Emerging influencer transparency services such as Q-83 provide the technology and tools necessary to review account insights for influences (such as fake followers, unusual growth and sudden drop offs) which can provide brands and agencies with greater visibility as to an influencer’s true reach, relevance and authenticity or an ‘honour audit’ for integrity. The best risk management strategy is to engage a sincere influencer in the first place as genuine influencers are more likely to have regard to their professional reputation and deliver on their legal and commercial obligations.
The very existence of a written agreement outlining the terms of the collaboration (signed prior to the delivery of any product or funds) is also likely to deter disingenuous influencers. This strategy is relevant for both paid and earned content. A standard short-form influencer contract creates legal obligations that the influencer must observe and perform. Entering into a short written agreement is good way to establish details such as the required brand messaging, key obligations (such as amplification and post scheduling), before there has been any investment in the collaboration by either party.
Engaging a more well-known ‘talent’ or brand ambassador will most likely require a longer-form agreement incorporating factors such as conflicts of interest, exclusivity, existing media obligations or sponsorships, structured content schedules and a payment plan. Insincere influencers are less likely to sign off on promises they cannot keep when the precise detail is in writing, and a written agreement provides a stronger position to avoid insincere influencers and obtain a return on investment with all agreed deliverables performed.
There is no simple, one-size fits all solution to ensure that an influencer will uphold their side of an agreement. However, having an influencer strategy that reflects both the legal and commercial considerations discussed above will put your agency or brand in the best possible position.
If you have any questions about engaging influencers, feel free to get in touch with the DVM Law team.