Brand lawyers have a tough job that goes beyond just keeping up with the law. I
n an age of rapidly evolving digital marketing platforms, keeping up with how each platform works and how those laws might apply can be a monumental task.
As social platforms evolve and the influencer industry booms, we’ve found that brand lawyers — while doing their best to keep up — consistently miss a few key issues that only those deep in the weeds of this work would know to watch out for.
FTC Disclosure Requirements
It’s common knowledge these days that when you pay an influencer to create content on a brand’s behalf, they must disclose that relationship. This is typically done using #ad or #sponsored in the body of the post. After the FTC published updated guidance on these requirements two years ago, we still see brands and their lawyers making two important mistakes when writing these into influencer contracts:
1. Disclosure Placement: The FTC requires the disclosure to be clear and conspicuous. In 2017, it was clarified that to meet this requirement, the disclosure must appear before a user has to click “read more” when consuming the content in a natural way, such as in a newsfeed. On Instagram, for example, this means #ad must appear in the first 90 characters of an influencer’s post and cannot be buried among a series of hashtags in the copy.
2. Who Must Disclose: It seems to be common knowledge that if you pay someone to create content and publish it on their social channels, this must be disclosed. But the FTC takes this a step further and clarifies that any material connection must be disclosed. Did your marketing team send the person a free product? That person must disclose they got the product for free in their post. Is the person closely related to someone who works for your company? That person must disclose this relationship in their post, as well.
Content Requirements And Edits
We find there are usually two major issues in this category. The first occurs prior to content creation when brand teams (sometimes at the direction of their lawyers) dictate certain expressions they want influencers to use to describe their products. Giving a list of potential talking points or things influencers can’t say, like making certain product claims, is totally fine. However, giving them specific expressions of opinion can get the brand in trouble. Why? Because most influencers regularly tell their followers that while content is sponsored, all opinions are their own, not to mention the larger issue of positioning their words as testimonials when you put the words in their mouth.
We also find that some lawyers like to review and make edits to the copy influencers write to correct grammar and writing style. Sure, lawyers are trained to ensure proper grammar usage, as the simplest misplaced comma can completely change the meaning of a contract. However, influencers often write as they speak and their readers know their tone, vernacular and grammar quirks well. Making content edits that go beyond trademark, product claims and product safety issues can not only result in ruining the authenticity, and therefore effectiveness, of the influencer’s content. But it can also very quickly damage the relationship between the brand and the influencer they hired — presumably for their ability to create content that influences their audience.
Contracts That Don’t Address Bad Behavior
This third category of watch-outs comes in two forms:
In our experience, brands are pretty good at writing contracts that dictate what a given influencer must do. But we rarely see a remedy included for influencers not living up to certain professional standards. We run into issues all the time with influencers not delivering work on time, not publishing content exactly as approved, not delivering metrics in a timely fashion, and much more.
Contracts should not only address what the influencer must do but should also have a clear remedy for common issues like this that could result in the brand not getting the full value out of the contract as intended. Lawsuits from partially completed work, including Snapchat famously suing an influencer for $90,000, have resulted.
We also find that contracts need to address the specific “bad behavior” that the brand will not tolerate. In the contracts we write, for example, we prohibit behavior such as: buying cheap followers or engagements; creating ephemeral content featuring lewd, drunken or illegal behavior; or disparaging other brands the influencer may have at one time worked with, regardless of whether the brand was at fault for the falling out. We’ve actually seen all of these things happen on other brands’ influencer programs, which is why we addressed them contractually.
The influencer space is changing quickly and brand lawyers are not getting any less work to focus on. Hopefully, these three categories will help to ensure that brands avoid the common potential pitfalls we see every week.
