Using Social Media Influencer Marketing: 6 Legal Tips
December 2, 2020
By Katie Paterno, Lawyer at McInnes Cooper
Using social media influencers and micro-influencers is an increasingly effective marketing strategy. Social media use is pervasive; 94% of online Canadian adults have at least one social media account, according to The Ryerson Social Media Lab’s July 2020 survey. Online shopping, accelerated by the COVID-19 pandemic, is also on the rise. The combined effect is driving more businesses to use social media influencers to reach their existing customers and new prospects. Influencer marketing spend is on track to reach $15B by 2022, up from $8B in 2019, according to various industry analysts. While using influencer marketing has the potential to complement your overall marketing strategy, engaging an influencer isn’t without risk, particularly if your mutual rights and obligations aren’t clear. If you are, or are considering, using influencer marketing, use these six legal tips to help ensure your strategy has a positive influence on your business.
1. Own the rights. For many businesses, their intellectual property is one of their most valuable assets. You’ll likely want to ensure that you either own or have a license to the work product, including any copyright in it, that your social media influencer develops for you. Typically, an influencer is developing work product as an independent contractor, not as an employee. Unlike in an employment context, a contractor owns the copyright in work product they develop unless there’s an agreement to the contrary. Consider including an intellectual property assignment or license clause in your agreement with the influencer to ensure you have the necessary and desired rights to the work product.
2. Make it exclusive. If you’re engaging an influencer to promote your service or product, you likely don’t want them to promote those of your competition. Consider including an exclusivity clause prohibiting the influencer from providing marketing, promotional or influencer services either to certain named competitors or to other businesses in your sector while you’re engaging them.
3. Morality matters. You’re hiring an influencer to promote your brand – not to bring your brand into disrepute. Set out the conduct you do and don’t expect of the influencer, such as prohibiting the influencer from posting any offensive, obscene, or defamatory content. You’ll also want to include the right to immediately sever ties with the influencer to minimize potential damage to your brand if they do so.
4. Look-and-feel. Most businesses engage a particular influencer because their personal brand, social media page, and following aligns with theirs. If the influencers changes the look-and-feel of their brand, it could throw that alignment off. Consider requiring the influencer to preserve the “look-and-feel” of their social media account(s) while you’re engaging them.
5. Creative control. Consider whether you want the influencer to have creative freedom, or if you want them to post only what you provide to them. If you’re giving the influencer creative control, you might want to include the right to pre-approve the content before it’s posted, and an obligation that the influencer will remove any content respecting your business at your request.
6. Comply with the Competition Act. It’s important that you be aware of legal advertising requirements, and that you ensure the influencer is also aware of – and compliant with – them. The increased influence of social influencers has drawn increased scrutiny; for example, Amazon recently launched a U.S. lawsuit against two influencers (as well as third party sellers) on a number of grounds, including false advertising. The Canadian Competition Act sets out both criminal and civil legal prohibitions against making (or allowing to be made) a representation to the public that’s false or misleading in a “material respect”, that is, it could influence a consumer to buy or use the advertised product or service. For an advertisement to be considered “misleading”, it’s not necessary to prove actual deception. Require that:
- Any content the influencer posts be true, and any reviews or testimonials be based on actual experience; for example, if an influencer is endorsing your product or service, they should have actually used that product or service.
- The influencer disclose the connection between the influencer and your business; for example, that your business is paying them or provided free products or services. This disclosure must be visible and prominent on all devices, and without the need for the user to click or tap to expand the post. The disclosure must also be clear. For example, simply tagging the brand by itself or using “#ad” on its own is likely insufficient.
Please contact your McInnes Cooper lawyer or any member of the Media & Entertainment Law Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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