Top 5 legal concerns for Influencers on Social Media

Being a social media influencer can give you both fame and fortune in a short period of time. However, you are vulnerable to legal risks that can get you in legal trouble. Therefore, it is important to be aware of the laws applicable to the influencer business.

In the following blog, we will discuss the following 6 common legal issues that social media influencers face and how to tackle them:

1. AD disclosure on Social Media

2. Avoid Intellectual Property Infringement

3. Execute a Brand Ambassador Agreement
4. Comply with Privacy Laws
5. Monitor the content to ensure legal compliance

Let's understand these legal risks in detail.

1. AD Disclosure on Social media

Some social media influencers may publish blogs on what’s the best to buy or product review videos. Whether you really enjoy the product and wish to recommend it or not, you still need to disclose your relationship with the company. If you do not do so, you may risk breaching the law. 

In fact, governments have imposed regulations on the compulsory disclosure of business relationships. In the UK, the influencers have to be clear about whether the products are given free of charge, loaned or paid by themselves. While some may think this equals a loss of business opportunity as viewers will consider your recommendations uncredible, it’s the exact opposite. Being transparent about your current and past relationships, be they commercial or personal, gives your viewer an impression that you are neutral in making suggestions. 

So how to avoid breaking the law accidentally?

Though US’s Federal Trade Commission and UK’s Competition & Markets Authority do not give a comprehensive list of signalling phrases, the gist is to be apparent and easy to understand. Here are some good examples: simply put:

• “this is advertisement promotion” or "#AD"
• “this is sponsored by Company ABC” in the blog.
• You can also make use of Instagram’s “Paid Promotion” tool so that the message is prominently displayed on the sponsored post.

Though sneaking “#advertisement” in a pool of hashtags is still understandable by literate persons, it’s considered as illegitimate by the Competition & Markets Authority as it’s not apparent enough. 

 Is using #Gift or #Collaboration meets the requirement for advertisement disclosure by influencer?

No, it might not meet the requirement for advertisement disclosure on social media. It's best to be clear and transparent by using terms such as '#Ad or #sponsored posts. As per the FTC guidelines, a simple statement like  “Company X gave me this product to try . . . .” is good enough to meet the requirment.

Being straightforward with your viewers and subscribers does have benefits! 

2. Beware of the contractual issues and execute the Brand Ambassador Agreement template

Companies usually ask the collaborated social media personalities to sign a contract before they begin producing the product review or the review videos. While some companies will try to avoid using a contract, it is a good practice for the influencers to sign and keep a copy of the contract. Though this may make the collaboration more complicated, both parties would be better protected. 

First of all, the influencer would ensure they are getting paid on time. Without reducing everything into a written freelance agreement, both parties may have difficulties in enforcing their agreed intention. Parties can allege they have decided on different versions of the oral agreement. The unreliability of memory may also make it harder for both parties to agree on a written agreement afterwards. 

Secondly, the influencer would be able to clearly set out their job description in the contract. This prevents the sponsor from constantly changing the job scope. It is a typical scenario that writers got dragged into a prolonged dispute with their sponsors in a contract with vague job description. The clients may always demand them to keep changing contents or worse, adding new contents that were not agreed in the original contract. Thus, stipulating the scope and specific details of the work have its benefits. The client can have reasonable expectations of what the completed written content looks like. Besides, the influencers may be able to resist the client’s demand to alter the job content frequently.

Thirdly, the influencer can reasonably restrict the scope of the “aftersale services”. As patrons usually expect the influencer to make use of their own goodwill to promote the products, the influencer may be required to not engage in certain activities to avoid controversies. For example, the client may set out in the contract that the influencer should not make any discriminatory comments upon the promotion goes live. In this case, both parties should specify the period and what counts as “discriminatory comment”. 

It may be impossible to list out a detailed contract that covers every bad scenario. However, having a contract means the influencer is protected to a larger extent. 

You can check out our template agreements below: 

• Brand Ambassador Agreement - Ambassador: This is drafted in favour of the ambassador. In this template, the Brand Ambassador will be paid a commission. The agreement stipulates that the Ambassador acts as the Company's representative in connection with the promotion and sale of the Company Products. The Ambassador will engage with the Company's social channels. The Ambassador’s duties include granting the Company the right to use the Ambassador's image and likeness for the Company's marketing purposes. There are also rules restricting the Ambassador's actions, for example the Ambassador is restricted from posting inappropriate content and mass unsolicited emailing.

• Brand Ambassador Agreement - Neutral: This is largely the same as the Brand Ambassador Agreement - Ambassador. The difference is that this is drafted in a neutral form. 

3. Avoiding Intellectual Property Infringement

Gamer-influencers use a great number of footage produced by other influencers frequently. Some generate revenue out of making reaction videos. However, you might have heard of Youtube’s “copystrike” policy —— your video will be taken down if it contains copyright materials. The same applies to written content and social media posts: if the author found out your content contains plagiarised materials, then they can be taken down by Google. This may bring less traffic to your channel or blog, hence reducing your revenue. 

To avoid the plight, influencers should ask for the original content creators’ permission to use their materials in the contract. In particular, you can ask the content creators to sign the following documents so you can procure their authorisation to use the content free-of-charge or at an agreed price. 

1. Media Release Form (for adults): This is a template media release form for adults. The form is applicable to acquiring both video and images. This Media Release Form is used to obtain the consent of another adult (“Releasor”) to publish particular photographs or video of the releasor for commercial and, or personal purposes.  
2. Media Release Form (for children): This is largely the same as the Media Release Form (for adults). 
3. Photo Release Form template
4. Video Release Form template
5. Podcast Release Form template

4. Compliance with the privacy law

Privacy is the top priority for Internet users. Internet personalities with large number of followers may develop their own apps and websites as a side project. Though collecting the user activity on the website can help you tailor the content, doing so without informing your users may breach the law. In this case, influencers must be careful about complying with the law as privacy law regulations are not the same in different jurisdictions. 

We have relevant templates here: 

• Privacy policy (with GDPR) - for website / mobile app: This is a Privacy Policy for a Website or App, in which special wording has been inserted for European users under GDPR. The user is deemed to have accepted them by using the service. The privacy policy can be displayed on the website. 

• Privacy notice (with GDPR) - for website / mobile app: informs the website user about how their data is collected, handled and processed by the company. The website user is deemed to have accepted the terms of the privacy policy by continuing to use the website after reading the policy. The privacy notice can be used as a pop-up message when the users enter the website or app. 

5. Monitor the content to ensure legal compliance

Influencers need to monitor the content they speak or post on their social media channels speak. Though freedom of speech is protected constitutionally, it is of utmost importance that influencers comply with other laws. For example, hate speech is regulated. In the United Kingdom, the Public Order Act 1986 prohibits racial and religious hatred. In fact, distributing, showing or playing a recording; and publishing or distributing written material that intends to stir up racial hatred will attract criminal charges. Additionally, the Criminal Justice and Immigration Act 2008 prohibits people from stirring up hatred on the basis of sexual orientation. 

It is important that influencers beware their written content and their speeches during live videos. Influencers may wish to avoid making speeches that directly or indirectly relate to racial, sexual and religious hatred. For example, discriminatory comments related to the appearances may result in an investigation. Doing research for the video or live and reviewing it before publishing would be a good solution to prevent violating the law.  

Though you might encounter different legal concerns when trying to become an influencer, you could make use of our templates to avoid stepping into the trap.