The legislator is already struggling to legislate on anything related to the Internet, so you can imagine the legal vagueness that surrounds a practice as recent as influencer marketing. It’s advisable to establish a formal contract with an influencer to ensure a successful partnership. But what should you include in this document? We’ll guide you.
Influencer marketing legislation in 2018
In fact, legislation already exists to regulate online influencer practices. In France, article 20 of the 2004 law on trust in the digital economy states: “Misleading commercial practices are those whose purpose is to […] use content in the media to promote a product or service when the business has financed the promotion itself, without clearly indicating it in the content or using images or sounds clearly identifiable to the consumer.”
The legislation therefore requires the mention of the promotional aspect of content published by an influencer. In France, the ARPP (Regulatory Authority for Advertising) regulates the sector and has announced its increased vigilance on sponsored articles this year. In the US, the FTC is keeping watch. The rules there are however more flexible, a simple hashtag with the name of the brand can suffice… Other influencers just add a simple #ad or #sp (for sponsored), which is clearly borderline.
On Instagram, the platform allows the mention of a “partnership” with a brand. You should require the influencer to use this feature when publishing the content. For their part, blogs must clearly differentiate a standard article from an infomercial or sponsored article. It’s not just a question of ethics, but also the law. In short, we advise you to include compliance with these rules in your contract.
Define the deadlines of the brand / influencer partnership
We can not say it enough, influencer marketing involves humans. As such, it’s a much less reliable tool than your usual advertising interfaces. While it’s easy to plan your campaigns to the nearest minute on the Facebook Ads platform, for your influencer campaigns, you depend entirely on the goodwill – and reliability – of the influencer.
So, to stay in control of time, it is essential to include all these chronological elements in your contract:
- Duration of the partnership,
- Deadline to submit the created content for approval,
- Timing of the publication of the content (day and time),
- Date when the publications can or should be deleted.
In case of an international partnership, for publication dates and times, be sure to indicate the time zone (UTC + 2 for Paris). To avoid confusion, indicate the timing corresponding to the influencer’s time zone.
Define their payment conditions
It’s essential to write in stone (and in the contract) the financial terms of the partnership. Remumeration must be written in black and white, even if it’s not hard cash. If the influencer receives products in exchange for free visibility, indicate the market value of the products. If the compensation consists of a trip, again clearly state what is taken care of, and what is excluded (fees, travel insurance, cancellation fees, etc.).
In the case of genuine remuneration, we advise you to break down the payment as follows:
- 30% of the total amount is paid upstream, in order to start the partnership,
- 70%, the rest, is paid once the partnership has been correctly executed.
By the way, you can stipulate a penalty in case of non-compliance with deadlines.
Define the property of the created content
The content created by the influencer remains their property, for copyright issues. That said, you can include a clause in the contract that allows you to reuse the created content. Be sure to indicate the media: social networks, website, print, etc.
In this clause, you must also include how long you are allowed to reuse it for. No, it can’t be “forever”. Indeed, in case of conflict, a judge could cancel this clause by judging it abusive.
Exclusivity or non-competitive clause
If you’re partnering with a leading figure in your industry, the last thing you want is for that same influencer to promote your competitor the week after. Don’t laugh, it has happened. This is all the more unfortunate as it will diminish the perceived authenticity of your campaign, and of course, avoid forming a partnership for an influencer who has recently worked for a competitor.
The exclusivity clause must be limited in time, typically around one year. Again, don’t be too greedy: a clause that’s too long could be cancelled by a judge in case of a legal dispute. No, claiming the exclusivity of this influencer over five years is not realistic. In that case they can become a brand ambassador, but they must be paid or rewarded regularly.
Of course, the presence of an exclusivity clause in theory means a higher compensation for the influencer. You are preventing them from forming a partnership with other players in the sector for a certain period, and that, in theory, needs to be paid for.
Bonus: remember to exclude deceptive practices
15% fake Twitter accounts, 60 million fake Facebook accounts, and he same amount of cheating on Instagram: the web is the empire of the artificial. The influencer you are dealing with is a real human being, that’s not the problem. The real question is their followers. It’s easy to buy large quantities of fake followers, or at least to use services that generate false interactions to increase the number of followers in return.
You can write the commitment of the influencer to the authenticity of their influence and the non-use of deceptive practices into the contract. The subject is sensitive, and the clause will not protect you completely, but it doesn’t cost more to include it, and it will allow you to turn against a dodgy influencer in case of a scam.
As you can see, dealing directly with an influencer also means a legal framework with a contract, with some key elements to include. If you want to simplify your life, you can also go through a dedicated platform which takes care of the legal and financial issues. So for sponsored articles, think of us!