Social Media Influencer Litigation

Social Media Influencers (“SMIs”) are people with the power to impact consumers’ buying decisions due to their knowledge and interactions with their audience. Influencers come in different sizes measured by the number of their followers. We have represented individuals based upon their experience, expertise, or particular market. Brand names are attracted to influencers who direct their followers to their product or service.

Social Media Influencer marketing has officially exploded and is cheaper than traditional business marketing. Big brands are turning their sights and dollars to influencers to endorse their products and blast them across all social media platforms. There are a host of legal requirements governing brand and influencer contracts.

SMIs and their affiliate brands can both be liable regulatory violations and other issues. The overriding issue that can arise is the truthfulness in the promotion by SMI of the product. The standard is whether an endorsement of the brand makes a consumer likely to believe his/her statements as to the product which come in the form an ad, post, picture, online rating or a “tag” of the product.

SMI endorsements must reflect an accurate experience and honest and truthful opinions. While it may be obvious, if the product was not actually tried, an SMI should not comment or post about it. Further, if the product was poor, the SMI should not comment positively about it.

To avoid potential liability in an SMI Contract and by extension thousands in attorneys’ fees, there are certain essential terms that must be present in every influencer agreement. The nature and range of services must be laid out, like quantity, how often and the date of the posts, with statements as to content the SMI will produce.

The Agreement must also treat issues and method of disclosure between the parties. Since the brand can be potentially sued for the posts of the SMI, it is important to retain approval or control over the content, and allow for a time to review them outlining the specific method by which the SMI will offer the posts and the provision that the brand has had the right to edit them, or waived the right to do so. Crucial to these provisions is the ability to delete a given post(s). Examples of that instance is if the post is in conflict with the brand’s purpose or message, or the possible use of another’s copyright. SMIs must now be particularly sensitive to any politically charged posts that may be found to breach the Agreement and threaten the brand.

Crucial in any SMI agreement is who owns the content. While it may seem silly but an SMI should be clear that she/he owns the content created. Often, an advertiser will want to take over an influencer’s content which may or may not be acceptable to the influencer. It is important to establish whether the influencer wishes to give up her/his ownership of an original, creative product. Short of the full transfer of ownership of content, an SMI can grant a temporary use or license to the brand, similar to the concept of paying rent. The scope and duration of the advertiser’s limited use of the content should be a provision in any SMI Agreement.

An advertiser may also have an interest in protecting proprietary or trademarked information or material. In that case, an influencer may be bound by a provision of confidentiality. The influencer her/himself may also want to protect certain private information such that the provision would be mutual. Certainly, an influencer need not disclose location information, compensation, terms of the Agreement, etc.

Most SMI Agreements also contain Non-compete provisions limiting the influencer’s ability to market other content with other advertisers. Brands typically want to hold an influencer “captive” and limit competition. Such provision can even limit an influencer’s own independent posting of material if similar to the advertiser’s product of service. New York law generally limits the scope and duration of non-competition clauses which serves to protect the originator of the content from current or subsequent marketing agreements.

Still another term of an SMI contract is more modern. In an age of highly-charged political discourse is a clause governing an influencer’s political, religious or moral views. While such a clause can flirt with trampling an influencer’s rights of free speech, brands typically want to control an influencer’s personal stances on issues, her/his behavior and good will amongst followers, to the extent inconsistent with the brand’s mission or own image. While it seems most influencers do not want to be silenced, if the advertiser’s own reputation is threatened, a contract term may serve to quiet the influencer’s personal views. Violation of such clauses can serve as a way out of a contract for a brand, to issue a monetary sanction, or even subject the influencer to liability for damages. Here again, the retention of good counsel is crucial to anticipate these issues between an influencer and an advertiser.

This statement only scratches the surface and does not treat all issues when it comes to SMI Agreements as to advertiser marketing. SMIs must navigate a minefield of government regulations. There is an ever-changing landscape in an Influencer’s power and reach to sway consumer dollars towards a product or service. Influencers have to be particularly mindful when it comes to revealing for whom they are advertising, what third-parties are involved, influence on children viewing posts, among a myriad of considerations. Proper drafting and negotiation at an early stage is critical to avoiding legal pitfalls of influencer marketing and thereafter, legal fees and the stress of litigation.

Social Media Influencers should not wade through the legal waters with a big brand withour her or his own representation. At Benjamin ♦ Hart, we guide our Clients through the complicated and intimidating legal process to protect the patience and work that went into developing an online following. We serve clients in all five boroughs of New York City: the Bronx, Brooklyn, Manhattan, Queens, Staten Island, and the surrounding areas of the upper counties of New York and Long Island’s Nassau and Suffolk. Request an initial phone consultation by calling (212) 537-6612 or submitting our contact form online.