In a time where social media “influencers” hold a LOT of power and pull over their audiences, paying to have one of them talk about your brand, product, or service can be huge for your marketing! It can send floods of their loyal fans over to your page to check out what you're doing – and if the influencer loves it, and their fans love them…chances are, they may love you, too!
But before you start counting your money – let's make sure the influencer post is done RIGHT. And since this information is coming from me, you know it's going to be all about the legal aspects! Here are a few tips to help ensure your influencer experience is legally compliant.
FIRST: Does the post qualify as an “Endorsement”
To be subject to the influencer marketing rules, the post has to qualify as an endorsement – which, spoiler alert – it likely will. The U.S. FTC says an endorsement is “any advertising message that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of [the person] other than the sponsoring advertiser.” So, if the influencer you’re hiring does a good job and the post reflects his/her beliefs (or even just seems like it does) congratulations! The post is an Endorsement, and you’ve gotta follow the rules.
- Disclose the Relationship
Anytime you are being paid (or in this instance, the influencer is being paid) he or she MUST disclose the material relationship in the post or story itself. So, if the post was paid for, if the merchandise was received for free, or any other material relationship exists, that has to be disclosed in the post itself.
If the influencer is going to use the hashtags #sponsored and/or #ad to disclose the relationship, the hashtags MUST be in the BEGINNING of the post caption, before the “more” button, or on the screen of a story or other image-only post.
The influencer can also use the “paid partnership with _____” feature, if available on social media, as long as this accurately describes the relationship.
- Don’t allow the Influencer to do anything deceptive or dishonest
Yes, you want the influencer to lay into how much he/she loves your products, services, and other stuff, but you want to make sure it’s actually legit. The influencer must be a REAL user of your product or service at the time the endorsement is given, and the advertisement can only run for as long as they are still a user of your product or service.
In addition to them actually being a user of your products or services, they have to ACTUALLY like it! The post has to reflect their actual beliefs, experiences, feelings, etc. For example, they can’t say how much they love your product or love working with you if they’ve never tried it, or never actually worked with you.
- READ the Terms associated with advertising on the platform you’re on
I know this one makes everyone grumble, but if you’re going to engage in influencer marketing on a specific platform, take a little bit of time to read the terms associated with that platform. Why? They’re all different! For example, Twitter may be okay with someone re-tweeting or reposting, while Instagram may not. Instagram may not allow something with respect to advertisements and posting, whereas another platform does. It’s important to know the rules, especially when you’re putting money into something!
SO…how do you make sure the INFLUENCER COMPLIES??
YOUR INFLUENCER AGREEMENT!!
As a brand or company purchasing influencer marketing, you must contractually require the influencer to comply with any and all FTC guidelines, including the disclosure requirements, authenticity, etc. discussed above. In addition, you or your company must make sure they actually read and understand it. Why? YOU will be responsible too, if their post is illegal.
So what goes in the contract?
First – you all know my thoughts on this, but DO NOT try to draft this agreement (or any agreement) yourself. It’s too important, and the language is too specific to try and slap something together. In the end, you’ll only be hurting yourself and risking massive FTC penalties if you try and cut corners here.
Some highlights of what need to be in the agreement:
- Length of relationship – number of posts
- Influencer agreement to FTC compliance
- Who owns the content created/used in the posts?
- Are you allowed to repost their content? (DOES THE PLATFORM ALLOW THIS?)
- Continuity of Persona clause
- Dispute Resolution
If you’re a member of The Societe, make sure you check out www.christywesterfeld.com in the BENEFITS section of your home page, for access to an Influencer Agreement template!
*Disclaimer: While I am a licensed attorney, the above does not constitute legal advice, and is meant as general information, tips, and guidance only. Please consult with an attorney in your state if you have any specific questions or need any personalized legal advice regarding your use of influencer marketing.
Christy Westerfeld, Esq. is an attorney and legal resource for online entrepreneurs and coaches. She helps savvy business women cut through the confusion and overwhelm of legal and create an easy and affordable plan of action to legally protect their businesses. While legal may not be #1 on your list of exciting topics, understanding the basics is VITAL to your success as an entrepreneur, and Christy will help you learn what you need to know, in a way that is easy to understand! When she isn’t working, you’ll find Christy chasing after her toddler, binge-watching “Suits,” or signing up for the latest beach city half marathon.