I had the pleasure of attending (remotely) the 44th UCLA Entertainment Symposium last week.
Of particular interest was the discussion on influencers between panellists Oren Aks of Atomic Milk Media, D'Angela Proctor of Wayfarer Entertainment and Ellie Hiesler of Nixon Peabody LLP, moderated by Po Yi of Manatt, Phelps & Phillips, LLP.
Given that many of us are still largely staying at home, whether required by law or voluntarily, a large part of our engagement with advertisements these days is through our phones or computers - Instagram, Twitter, Facebook. In recent years, influencers have become intertwined with advertising. More experienced influencers have become brands in their own right.
Some points were raised by the panel from both a contractual and practical perspective which I thought were interesting and useful, for both companies and influencers:
- Have a good, restrictive "morals" clause. Make it mutual (if acting for influencer);
- Review your force majeure clause;
- Ensure good and specific reps and warranties (e.g. what if the very product you are advertising comes under investigation or unsavoury facts about it come to light?);
- Ensure you have a clear approval process in place and final say over the content (if acting for company);
- Ownership of content (who owns the final product?).
- Consider diversifying onto different platforms (if you are an influencer - e.g. what is happening with TikTok now);
- Have contingency plans in place and clear plans of action for both influencer and company (beware the very public court of public opinion that is social media);
- Prepare statements / alternative content for platforms in case of last-minute PR emergencies (social media moves very fast. In some cases, too fast).
In addition, what can make influencer-driven content confusing for consumers is that many private individuals and influencers also use these same social media platforms to share their own personal content.
Many jurisdictions have now come up with laws or guidelines on the clear labelling of sponsored posts / advertisements or internet advertising generally (including Britain, the US, China, Hong Kong and Singapore). However, influencers and companies alike must carefully review the laws and guidelines in each of the relevant jurisdictions. For example:
- Is it enough to put #ad? Do you need to put this hashtag in another language? Or do you need to use another phrase altogether?
- What about #spon as opposed to #sponsored?
- Must you declare affiliate links?
- Are there guidelines around how the labels must be positioned in the post?
- Do you need to put in any disclaimers about the product itself?
There are a number of other issues that influencer-led advertising may bring up as well, such as IP issues.
As advertising moves increasingly into the digital space, influencers and companies should keep themselves apprised of the laws and guidelines regulating this area.