Social media influencers: A brand’s key considerations

4th November 2021

As the rise of the social media influencer continues unabated, Ryan Doodson from our Commercial and Technology team looks at the common questions and deliberations that every brand should consider in influencer partnerships, and offers his practical advice.

The social media influencer

From Love Islanders, Premier League footballers to Hollywood A-listers, celebrities have an undoubted, almost inherent, ability to influence. Whether the impressionable subject is a cohort of ‘regular’ individuals, or indeed a corporate entity – the ability is unquestionable. Of course, this is not a novel concept – celebrities have for decades occupied the pages of national magazines and tabloids, however the mediums by which their influence may be exerted have changed drastically over recent years, leading to the exponential growth of the potential target market of impressionable subjects, in both number and the increased diversification of its demographic. As for whether we will see the ‘metaverse influencer’ promenading around sporting their sponsor’s products any time soon, that is another question, however for now, brands remain focused on the utility of social media influencers as we know them today.

This vast audience that social media has presented, has naturally grabbed the attention of brands across a plethora of industries hoping to harness this relatively new-found marketing opportunity. The rise of the social media influencer is well documented and brands were quick to respond to this new kind of celebrity, drawn by the promise of direct, instant access to their thousands, or in some cases, millions of followers.

This led to somewhat of a gold rush, with brands snapping up influencers for campaigns often giving little regard to any legal formalities or regulatory responsibilities (to the extent any such responsibilities existed at the time). However, it is fair to say that the arena is now more established with the advent of reliable performance metrics, specialist influencer agents, advertising regulations and codes of conduct for social media platforms. Given these developments, a brand should take stock and consider whether it is maximising its engagement with this new method of marketing as well as ensuring it does so in compliance with legal and regulatory requirements. With this in mind, there are a number of common questions and deliberations that every brand should think about when considering influencer partnerships.

Practical considerations

The influencer

Every brand will have its own idea of the ideal influencer but some considerations crop up across the board:

• Reach. How many followers do they have? What is their frequency of engagement? Are their followers the right demographic?
• Previous Work. What other brands and in what sectors has the influencer promoted? Do you know the results?
• Risk. How likely is it that the influencer will act in a manner that proves damaging to the brand? What happens if the influencer does something that causes reputational damage (do you really want them to be smoking while promoting your teeth whitening brand?) Can you terminate if they do?
• Cost. How much will it cost you? While it will inevitably be a reflection of an influencer’s performance against the above ‘metrics’, the fees charged by influencers can vary hugely – from Cristiano Ronaldo’s reported ability to charge in excess of £1 million to endorse a product, to the newest back-bedroom influencer charging a nominal fee to help in their establishment.

Content

Ordinarily we would expect the influencer to be responsible for producing the content. Clients with whom we work tend to have a common belief that this produces the most authentic content that stands the best chance of connecting with a target market. However, there are a number of points a brand should consider:

• What has been the theme of their previous content? Will this complement your brand?
• How much freedom as to production of content do you want the influencer to have – do you want a right of pre-approval? Who will pay for any production costs?
• Longevity – how long do you expect the content to remain available?
• What rights do you want in respect of the content post-campaign?
• Do you want a minimum number of posts or story lengths?
• Who owns the content? Generally, we would expect that the majority of the intellectual property rights in the content will vest in the creator (usually the influencer), with the brand being granted a worldwide, irrevocable, royalty-free licence to use the content on their own platforms.

The detail

You have engaged an influencer, they have the content ideas. What else do you need to consider?

• On which social media platforms will the content appear?
• Will you have either brand or sector exclusivity? If so, for how long?
• Are you prevented from using other influencers?
• When do you have to pay the influencer – before or after the campaign? Can you make payment conditional upon any other metrics being achieved such as click-through, reach or sales?

Regulation #ad

The days of influencers releasing paid-for content with the unsuspecting follower being none the wiser are now long gone. Now, paid-for content falls under the remit of consumer protection law and nearly always will be covered by the regulations of the Advertising Standards Authority. Key questions to consider are:

• Has the influencer’s agent provided suitable advice to their client to ensure compliance? Could their non-compliance affect you?
• Are there any platform-specific guidelines that influencers must follow?

Admittedly this is a lot to think about, especially when time is often of the essence and campaigns need to be rolled out on short notice. Nonetheless, it is vital that a brand has an agreement in place that documents the various rights and responsibilities mentioned above. Cue the influencer agreement.

The influencer agreement

A well-drafted agreement is often the key to maximising engagement with a target audience and maintaining brand reputation – it will make clear what is expected from both parties, avoid common commercial problems and ensure the campaign is conducted in accordance with any legal and regulatory requirements. A sound agreement should:

• be as simple and straightforward as possible; and
• make clear to both parties what is expected from the influencer, bearing in mind that they may not always have legal representation or advisers.

If you tend to work with influencers regularly on various different campaigns over a longer period, then it is worth considering using an overarching framework agreement. This will ensure that there is a defined set of overarching rights and obligations governing each engagement that will help save both time and money down the line.

How we can help

It was almost inevitable that the influencer ‘ad market’ would mature into a regulated space. As with anything, this brings with it further obligations that the parties must comply with. The safest way to ensure compliance, as well as ensuring that the brand receives what it expects from the arrangement, is by concluding a well-drafted, clear and accurate agreement that underpins the partnership.

If you have any questions in relation to any of the points raised in this briefing, please contact Ryan.