_edite.png)
Disclaimer : This articles is meant for informational purposes only and should not be construed as a legal opinion. Should you have any questions or need clarifications on the subject matter, kindly feel free to contact us for legal advice.
Technological advancement has seen businesses prefer influencer marketing over traditional mainstream ways of marketing in a bid to reach a wider audience online. Businesses have capitalized on the services of influencers to market their products and services through their their social media accounts which command a huge following. No doubt, this method of marketing has been effective in pushing desired traffic and sales in favour of businesses that use it.
However, there are underlying concerns as regards consumer protection, data protection and competition law. With the continued acceptance and usage of influencer marketing, there are serious legal concerns such as consumer deception and violation of competition laws which warrants industry regulators and businesses to put in place measures that will ensure the thin line between acceptable business practices and illegal/deceptive practices is not crossed.
What Is Influencer Marketing?
Influencer marketing is the posting of social media content in pictorial, video or text format by influencers in a bid to promote specific brands, products or services hence amplifying a business's marketing message.
An influencer is any person who has the ability to inspire or guide the actions of others. In a more strict sense, an influencer is a person who is able to generate interest in a consumer product or service by posting about it on social media and other online platforms.
Influencer marketing therefore, denotes the influencing of public perception to the degree that consumer perceptions are altered causing the target audience to deviate from their routine consumer trends.
Legal Concerns in Influencer Marketing
Sometime in the year 2019, the Competition & Markets Authority (CMA) in the United Kingdom promulgated regulations that would guide influencer marketing. This followed an investigation that had been launched the year before regarding practices of certain celebrity influencers in brand marketing on matters disclosure and compliance with consumer protection laws. The probe was crucial and highly publicized sending a warning shot to stakeholders to be keen and cautious about the laws that govern the use of cyberspace.
While the Kenyan CMA has not yet promulgated such regulations to govern the practice of influencer marketing, the debate is alive and businesses ought to take appropriate measures to cushion themselves from liability.
Before engaging influencer marketers, businesses should have in place the following legal agreements -
Brand Service Agreement
Non-Disclosure Agreement
Ethical Commitment Agreement
Data Protection Agreement
Intellectual Property Assignment Agreement
Intellectual Property License Agreement
1. Brand Service Agreement
This is the primary agreement which sets out the rights and duties of the influencer, business and other persons that are involved. The agreement entails the scope of the services that the influencer will provide to the business and the operative aspects of the influencer marketing arrangement.
Having a good Brand Service Agreement ensures there is no ambiguity as to the terms of engagement of an influencer. It sets out in clear terms who is responsible for what, who is to blame when something is done/not done. It further stipulates whether there are any insurance obligations on the parties and lays emphasis on the need to observe consumer protection laws and regulations among other terms. A Brand Service Agreement is the primary binding document that the parties can rely on should anything go wrong.
2. Non-Disclosure Agreement
Non-Disclosure Agreements (NDAs) protects trade secrets and commercially sensitive information. They enable an environment where there is free exchange of information without the risk of exploitation of the information shared to the disadvantage of the party disclosing it.
While NDAs may be included in a Brand Service Agreement as part of the clauses therein, it is important to have a separate NDA at the pre-contractual stage. This enables a business to engage an influencer on a new product (for example) prior to its launch without risking unauthorized leak of information to the public.
3. Ethical Commitment Agreements
These type of agreements are more beneficial to the business than the influencer. More often they are made part of the schedules or appendix to the Brand Service Agreement or as part of the Terms & Conditions when a business hires an influencer as a content supplier.
Ethical Commitment Agreements are used when a business has invested a lot of capital in establishing its image which can easily be undone if it were to engage an influencer who may possibly do something different and damaging.
4. Data Protection Agreement
Businesses and influencers should be alive to the fact that some content they post on social media may contain personal data of data subjects. It may be the case that the data subject is part of the relevant platform's privacy policy but mining that information and using it to the advantage of the business may be something that is not expressly allowed.
To this end it would be beneficial for businesses to ensure their influencers adhere to data protection laws by signing a Data Protection Agreement which will then apportion liability accordingly should anything go wrong.
5. Intellectual Property Assignment Agreement
An Intellectual Property (IP) Assignment Agreement ensures there is proper transfer of ownership in IP from the owner (assignor) to a new owner (assignee). Copyright as a type of IP is the area of main concern for influencers. Copyright is the branch of IP that protects original artistic ideas including music, literary works, audio-visual records and film just to mention but a few.
Now, even though a business might hire an influencer to create content, the business will not own the content unless it is expressly assign to them in writing by the influencer. Whereas assignment clauses will often be made part of the Brand Service Agreement, separate IP Assignment Agreements are particularly very important when more than one person is involved in the creation of that particular content. An example is where an influencer subcontracts another entity to shoot his/her videos. The other entity would technically lay a claim on the ownership of the content for having participated in its making. Even though this other entity is not subject to the Brand Service Agreement, the influencer should be wise to execute and IP Assignment Agreement with the other entity so that they clear the rights in that content in order to sell it to the business.
6. Intellectual Property License Agreements
Unlike an IP Assignment Agreement which transfers ownership an IP License Agreement only grants permission from the owner (licensor) to the business (licensee). Licenses are only given for a limited period of time for a specific purpose.
IP License Agreements are equally recommended for use where third parties are involved. An example is where a influencer wants to use or sample a part of a famous song to create content for the business. It is highly unlikely that the owner of the song or his record label or publisher will assign all the rights in the song to the influencer. In this scenario an IP License Agreement would be best suitable.
THE END
Comments