Influencer marketing: legal safeguards for brands in the digital age
Influencer campaigns can be powerful but legally complex. This post explores the core risks for brands, including advertising rules, disclosure obligations, contract protections, intellectual property rights, and reputational risk management.
The explosion in “influencer” marketing over recent years has dramatically altered how brands promote themselves. Influencer marketing is a fast-growing industry, with market practice and contracting models being established in real time. As this burgeoning industry emerges from its initial “wild west” phase, there is an urgent priority for brands to adopt a structured and legally sound approach to influencer contracts.
Comprehensive written agreements are needed to define the parameters of the brand/influencer relationship, mitigate potential risks, and safeguard the interests of both parties. They must address a broad range of factors, ranging from exclusivity and content approval to image rights, data protection, and termination events. Clarity as to the parties’ rights and duties is vital in a context where the financial stakes are high, online activity has global reach, and the boundaries between marketing and personal expression can be blurred.
Brands must also navigate a labyrinth of advertising standards and consumer protection laws, often taking account of multiple jurisdictions. Transparency, particularly in disclosing paid promotions through clear markers like “#ad”, is essential. This requirement ensures that consumers are not misled into believing that a sponsored message is an organic endorsement – a critical aspect of maintaining consumer trust and avoiding legal repercussions. Brands must ensure their influencers possess a robust understanding of ethical marketing practices, including the prohibition of artificially inflated follower counts and misleading use of photographic filters or editing techniques. Failure to do so can result in significant reputational damage, eroding consumer trust and potentially triggering legal action from regulatory bodies like the Advertising Standards Authority (ASA) and the Competition and Markets Authority (CMA).
Moreover, the issue of content ownership and control necessitates careful consideration. Brands must strike a balance between maintaining a degree of directive control and preserving influencer autonomy, enabling influencers to maintain creative integrity while at the same time safeguarding brand consistency. This delicate equilibrium is essential for fostering authentic partnerships that resonate with audiences. Brands must also remain vigilant to ensure that follower counts and engagement metrics are genuine. The potential for fake followers, bots, and AI-generated content presents a significant challenge, requiring proactive measures to maintain the integrity of influencer marketing campaigns. This requires robust due diligence processes, including scrutiny of influencer analytics and the inclusion of contractual clauses prohibiting the use of artificial engagement techniques.
Brands must also ensure that they comply with applicable data protection laws when collecting and processing personal data related to influencers or their audiences. This includes providing clear privacy notices and policies and ensuring that influencers are aware of their obligations under data protection rules. The handling of sensitive data, such as health information, requires even greater scrutiny and involves compliance with stringent legal requirements.
Brands that neglect the legal intricacies of influencer marketing can face significant consequences. False endorsements, for example, can lead to costly lawsuits and irreparable damage to brand reputation, as has been seen in cases involving celebrities such as Rihanna and Eddie Irvine. Conversely, well-designed influencer agreements can foster productive partnerships, enhancing brand reach and credibility. By prioritising clear communication, legal precision, and ethical practices, brands can cultivate successful partnerships with influencers and avoid pitfalls which can have highly negative effects.
The content of this article is not legal advice, which it may be sensible to obtain before you take any decisions or actions in the areas covered.
