On 29 January 2021, the Kemp Little team joined Deloitte Legal. Click here to view the press release.

As of 30 January 2021, Kemp Little LLP ceased to operate as a firm of solicitors and practice law and ceased to be regulated and authorised by the Solicitors Regulation Authority.

Kemp Little LLP has been re-named KL Heritage LLP.

If you are looking to contact a specific individual to seek legal advice or in respect of any other business relationship, please contact Deloitte Legal.

If you are seeking to contact the old Kemp Little LLP in relation to a previous business relationship or matter, please get in touch with KL Heritage LLP.

For enquiries relating to Kemp Little technology products and training portal, please email deloittelegal@deloitte.co.uk

 


 

Kemp Little is a trade name used under licence by KL Heritage LLP (formerly Kemp Little LLP, registered number OC300242 and VAT number 182 8854 65).

On 29 January 2021, the Kemp Little team joined Deloitte Legal.  As of 30 January 2021, Kemp Little ceased to operate as a firm of solicitors and practice law. From this date Kemp Little ceased to be authorised and regulated by the Solicitors Regulation Authority and is being re-named KL Heritage LLP.

All references to Kemp Little herein are references to KL Heritage LLP, which used to carry on business in that name.

KL Heritage LLP is not connected to or associated with Deloitte Legal or Deloitte LLP in any capacity.

 

Kemp Little
  • Looking for someone?
  • Email us
  • Search
MENU MENU
Insights overview

Commercial technology · 15 August 2019 · Roshiny Panchalingam

Influencer marketing – contractual considerations for influencer agreements

In our increasingly digital world, the use of influencer marketing has risen rapidly as a fundamental channel for retailers to communicate, connect with and advertise… Read more

more content below

In our increasingly digital world, the use of influencer marketing has risen rapidly as a fundamental channel for retailers to communicate, connect with and advertise to their consumers. The growth in reliance on digital channels runs in tandem with consumers increasingly using social media platforms for making purchases, product research and gaining inspiration to shape their spending habits. As a new era of such “social shopping” commences, so comes more regulatory interest. Both the CMA and the ASA have recently increased scrutiny on the misuse of influencer marketing in misleading consumers. Consequently, it is fundamental now, more than ever, for retailers to think about how best to govern relationships with their influencers. We have already covered how retailers can protect their brand image and other IP considerations for social media use. This second part of our two-part series has summarised some of the factors retailers should consider when drafting or negotiating contracts with social media influencers. A simple and clear agreement can have a large impact in making a brand look “accessible” and “comfortable” to potential business partners.

When drafting influencer agreements retailers may also want to think about considerations for celebrity endorsement agreements, covered in our recent article.

  1. Regulatory considerations

The CMA’s recent social media endorsement study guidance (the “CMA Guidance”) confirms that if a retailer, pays, gifts or loans products to an influencer and has had input in the influencer content created in relation to such product(s) or even approval rights to what is in the content before its publication, the content is categorised as an “advert” and it must be made clear on publication that such a post is “promoted content”. The CMA Guidance also specifically includes in this category the use in influencer content of discount codes, competitions, giveaways or references to promoting won products.

Retailers should consider placing contractual obligations on influencers to clearly disclose such relationship with them in any influencer content posted. Whilst there is no specific legal guidance on appropriate disclosures to use, the CMA Guidance takes the view that “Advertisement Feature” or “Advertisement Promotion” are useful descriptions and/or hashtags in influencer content. The CMA’s Guidance also notes that other disclosures such as #Ad, #Advert, and using the ‘Paid Partnership’ tool on Instagram in addition to these hashtags, also relays the retailer/influencer relationship to consumers simply and effectively.

Retailers may also consider it appropriate to specifically state in their contracts with influencers which behaviours/actions are not suitable. For example the CMA Guidance states that #spon and/or #sponsored are riskier approaches to disclosing brand relationships to consumers and do not necessarily go far enough to disclose the relationship between an influencer and a retailer. In addition, all such disclosures should be clear and prominent enough for consumers to see when they are viewing influencer posts. This means that the disclosure should not be hidden in hyperlinks or at the bottom of textboxes.

It may be prudent for retailers in the UK to also include a more general obligation for influencers to comply with the CAP Code and to avoid breaching any other relevant advertising laws and regulations, given that influencer content falls within the very wide scope of the investigatory powers of the ASA and the CAP code. Retailers should consider potentially drafting this as a warranty (a contractual promise, breach of which gives the other party the right to claim for damages for breach of contract) to strengthen the remedy available to them if this obligation is ever breached by influencers.

International retailers should bear in mind that advertising rules vary across the world, wherever content is accessible. Therefore retailers should consider inserting a contractual obligation that the influencer is compliant with the appropriate advertising disclosures in the relevant jurisdiction of where the content is produced.

  1. Exclusivity

Exclusivity clauses are a fine balancing act between commercial pressure and competition law considerations. Whilst it is appropriate to consider if a chosen influencer is engaged or affiliated with similar brands and/or posting about similar products to that of the retailer, it is fundamental to be aware of the potential anti-competitive nature of aggressive non-compete clauses. Consider requesting full, upfront (and continuous) disclosure of an influencer’s current and future commitments with competitor brands. This enables retailers to assess on a continuous basis, whether influencers are an appropriate match for their own brand.

Taking this one step further, it might be appropriate to place an obligation on the influencer to confirm that carrying out its responsibilities with competitor brands does not (and will not) cause it to be in breach of its agreement with the retailer. Again, it may be appropriate to consider obtaining a warranty from the influencer if retailers are particularly concerned with an influencer’s relationship with other brands and therefore a strengthened commitment from the influencer is necessary.

It is also possible to restrict the influencer’s engagement with competing brands and/or for other similar products or services during a certain period of time, although it would be crucial to obtain advice from a competition law expert on a suitable length of time to ensure such a non-compete clause complies with competition law.

  1. Right to take down content

Reputational management is still one of the key considerations for retailers producing advertorial content and this is no different on social media channels. Given the fast-paced nature of the digital world, retailers may want to set out a rapid route to handle or remedy any influencer content posted that does not compliment the brand image or worse, tarnishes a retailer’s hard-earned reputation.

Dependent on the retailer’s bargaining strength, it may be suitable to set out an exhaustive or non-exhaustive list of the type of content considered inappropriate to be posted and include a general, all-encompassing obligation that the influencer must not do anything to bring the retailer’s brand into disrepute. If retailers are looking for more control in this area, it is possible to ensure that what constitutes “inappropriate” content remains a decision in the sole discretion of the retailer. If your standards of appropriateness are breached, one contractual remedy for the retailer might be that the influencer must remove the social media post within a certain period of time (hours) of a formal request received from the retailer to do so. Alternatively, or in addition, retailers may consider whether to create a knock-on effect of such a breach, on fees paid or payable under the contract.

  1. Confidentiality

Whilst it is likely that you will look to include terms to govern the confidentiality of your arrangements with the influencer, where the campaign is under embargo, or you are launching a brand new product or service, you will also want to ensure confidential information provided by you during the course of the engagement is kept under wraps until a certain date (e.g. campaign launch date).

  1. Deliverables

As with any other commercial agreement, retailers should provide clarity on the deliverables expected from the influencer. Some key questions that should be provided for in the influencer contract are as follows:

  • What collateral is the influencer creating?
  • Which platform(s) should these be uploaded on?

If these are, for example, Instagram posts:

  • how many posts are required from the influencer?
  • Is there a particular time at which the posts should be published (e.g. should the post coincide with a launch date for a particular product?)
  • Are there certain hashtags that the influencer should use when posting content? This may tie together with the regulatory considerations discussed above or may be specific to certain approved hashtags used for a product campaign to maximise the retailer’s exposure.
  • If there is a long list of services and/or deliverables expected from the influencer, it may be worth setting out the details in a schedule to the agreement to provide more clarity.
  1. Intellectual property and ownership of content

One of the key considerations for retailers is ownership of the content produced.

As discussed in our previous blog, typically, the content will be posted on the influencer’s own social media account therefore the default position is that the influencer owns the intellectual property rights in the content produced. Retailers may consider drafting the contract in one of two ways to ensure a right to use the content for its own purposes:

  • the influencer transfers ownership of their intellectual property rights in the content produced to the retailer; or
  • the influencer provides the retailer with certain licensing rights to use the content produced for its own purposes.

Furthermore, where the retailer is only licensed the right to use the intellectual property in the content, retailers should consider the wider purposes for which they may want to use the content produced and ensure the contract provides for this. For example, a licence may not cover the ability for a retailer to use the content for an international brand campaign or even allow for the content to be re-posted via the retailer’s own social media page if the contract states the licence to use the content is only for the retailer’s “internal business purposes”.

Retailers should bear these points in mind when drafting and entering into influencer agreements to ensure any key risks are adequately covered. Ensuring both parties are clear about their contractual rights and obligations can make a big difference in creating an enjoyable working relationship with influencers and a successful influencer marketing campaign.

  • Share this blog

  • Twitter
  • Facebook
  • Linkedin

Roshiny PanchalingamRoshiny Panchalingam is a commercial technology associate

Get in touch

View the team

Sign up for our newsletters

  • Share this Blog

  • Twitter
  • Facebook
  • Linkedin

Other stuff you might like

  1. Are your offices ready for a post-lockdown return to work?
  2. Preparing for the New Normal | Webinar
  3. Retail reconsidered | KL Stores: a case study series exploring innovation in retail
The hottest topics in technology
  • Adtech & martech
  • Agile
  • Artificial intelligence
  • EBA outsourcing
  • Brexit
  • Cloud computing
  • Complex & sensitive investigations
  • Connectivity
  • Cryptocurrencies & blockchain
  • Cybersecurity
  • Data analytics & big data
  • Data breaches
  • Data rights
  • Digital commerce
  • Digital content risk
  • Digital health
  • Digital media
  • Digital infrastructure & telecoms
  • Emerging businesses
  • Financial services
  • Fintech
  • Gambling
  • GDPR
  • KLick DPO
  • KLick Trade Mark
  • Open banking
  • Retail
  • SMCR
  • Software & services
  • Sourcing
  • Travel
close
The hottest topics in technology
  • Adtech & martech
  • Agile
  • Artificial intelligence
  • EBA outsourcing
  • Brexit
  • Cloud computing
  • Complex & sensitive investigations
  • Connectivity
  • Cryptocurrencies & blockchain
  • Cybersecurity
  • Data analytics & big data
  • Data breaches
  • Data rights
  • Digital commerce
  • Digital content risk
  • Digital health
  • Digital media
  • Digital infrastructure & telecoms
  • Emerging businesses
  • Financial services
  • Fintech
  • Gambling
  • GDPR
  • KLick DPO
  • KLick Trade Mark
  • Open banking
  • Retail
  • SMCR
  • Software & services
  • Sourcing
  • Travel
Kemp Little

Lawyers
and thought leaders who are passionate about technology

Expand footer

Kemp Little

138 Cheapside
City of London
EC2V 6BJ

020 7600 8080

hello@kemplittle.com

Services

  • Commercial technology
  • Consulting
  • Disputes
  • Intellectual property
  • Employment
  • Immigration

 

  • Sourcing
  • Corporate
  • Data protection & privacy
  • Financial regulation
  • Private equity & venture capital
  • Tax

Sitemap

  • Our people
  • Insights
  • Events
  • About us
  • Contact us
  • Cookies
  • Privacy
  • Terms of use
  • Complaints
  • Debt recovery charges

Follow us

  • Twitter
  • LinkedIn
  • FlightDeck
  • Sign up for our newsletters

Kemp Little LLP is a limited liability partnership registered in England and Wales (registered number OC300242) and is authorised and regulated by the Solicitors Regulation Authority. Its registered office is 138 Cheapside, London EC2V 6BJ. The SRA Standards and Regulations can be accessed by clicking here.

  • Cyber Essentials logo
  • LORCA logo
  • ABTA Partner+ logo
  • Make Your Ask logo
  • FT Innovative Lawyers 2019 winners logo
  • Law Society Excellence Awards shortlisted
  • Legal Business Awards = highly commended
  • Home
  • Our people
  • Services
    • Business restructuring and reorganisation
    • Commercial technology
    • Consulting
    • Corporate
    • Data protection & privacy
    • Digital content & reputation risk
    • Disputes
    • Employment
    • Financial regulation
    • Immigration
    • Innovation
    • Intellectual property
    • Private equity & venture capital
    • Sourcing
    • Tax
    • Travel
  • Resources
  • Insights
  • Covid 19: Your Business Continuity
  • Events
  • About us
    • Who we are
    • Our social responsibilities
    • Our partnerships
    • Join us
  • Contact us
  • FlightDeck
  • Sign up for our newsletters
  • Follow us
    • Twitter
    • LinkedIn
close
close
close

Send us a message

Fill in your details and we'll be in touch soon

[contact-form-7 id="4941" title="General contact form"]
close

Sign up for our newsletter

I would like to receive updates and related news from Kemp Little *

Please select below any publications that you would like to receive:

Newsletters

close

Register for future event information

[contact-form-7 id="4943" title="Subscribe to future events"]
close
close
Generic filters
Exact matches only

Can't remember their name? View everyone

  • Home
  • Our people
  • Services
    • Business restructuring and reorganisation
    • Commercial technology
    • Consulting
    • Corporate
    • Data protection & privacy
    • Digital content & reputation risk
    • Disputes
    • Employment
    • Financial regulation
    • Immigration
    • Innovation
    • Intellectual property
    • Private equity & venture capital
    • Sourcing
    • Tax
    • Travel
  • Resources
  • Insights
  • Covid 19: Your Business Continuity
  • Events
  • About us
    • Who we are
    • Our social responsibilities
    • Our partnerships
    • Join us
  • Contact us
  • FlightDeck
  • Sign up for our newsletters
  • Follow us
    • Twitter
    • LinkedIn