The Influencer, the Baker, the Candlestick Maker?

Everyone knows the three key words that translate to “get rich quick” in 2018: Social. Media. Influencer.

Long gone are the days of medicine, law and priesthood. Didn’t Love Island 2018’s newly qualified solicitor claim to have made a year’s salary with just a few sponsored Instagram posts since leaving the iconic villa? And who could blame her? In brief: followers + likes = money.

And this doesn’t just apply to the influencers themselves. Social media advertising is a mutually beneficial principle. Some companies can afford to pay their ambassadors hefty commission for their services. Others are comparatively small: start-ups with not a lot to spare. All the remuneration they can offer is gifting their products to flawless 22-year-olds with 5,000 followers, whose diets consist exclusively of iced coffees and likes on Instagram. These youngsters don’t have any money, and putting in shifts at the café is so 2010. They can keep the clothes. They can keep the makeup. For free. As long as they put a picture of it on their story and tag the company. Free stuff for them, practically free advertising for you. Ah, those not-so-fond memories of paying through the nose for ATL marketing on television, only to discover that the best slot your company could afford was on channel 71409, in between Songs of Praise and Countryfile repeats, with German subtitles, sometime after midnight, every second Wednesday. This new Instagram thing is perfect!

But unfortunately, nothing stays perfect forever. Although it is a well-known fact that the law generally has not quite reached its evolutionary peak (let’s face it, it is still technically illegal to be drunk in a pub), legals do have a slightly annoying tendency to get involved in just about everything that’s good about life. Considering the current stalemate of the Northern Ireland Assembly and Westminster’s preoccupation with exiting the EU, I don’t think we’re going to see the Instagram Act 2018 promulgated anytime soon. Nevertheless, all kinds of legal and regulatory issues come hand in hand with social media advertising and content production, and it’s not just as easy as it’s made out to be. Contract Law, IP, Employment, Competition, Data Protection, discrimination, sexism, Advertising Standards. You name it. CMA investigations on transparency for rewards, strict monitoring of artificially generated social media traffic and inauthentic content. Poorly-informed young brand ambassadors falling foul of advertising regulations because they’re relying on the word of inexperienced “fast fashion” interns to let them know the what’s what of staying out of trouble with the law. This is harmful for your ambassadors, harmful for your brand and harmful for you.

I spoke to a lifelong friend-turned-successful-lifestyle blogger (who wishes to remain anonymous) about her experience of advertising products on her Instagram and YouTube accounts. In standard lawyer fashion, I asked, “Whenever you are asked to promote a brand, are you typically given any form of written agreement?” Her response? “It depends on the brand … Sometimes they say, ‘put this on your socials and we’ll give you a fiver for every unit sold’…?”. Hmm. I went a little further. “Have your obligations always been made clear to you in a way you can understand?” She explains that her terms are “definitely not clear”. “There have been times I’ve gotten sign-off, then someone else in the same company hasn’t had it run by them and I’ve had to take the post down.”

She spoke about her understanding of transparency of advertising and rewards: “If you put something up that’s been gifted, you’re supposed to say it’s been gifted.” While this is a pretty good rule of thumb, we discussed whether it might be useful if each brand gave out a brief set of universal guidelines that every ambassador has to follow, in order to avoid having their content forcibly removed and suffering a consequent loss of earnings.

And the big question from me: “Have you ever been contacted by a lawyer, or been told you have a right to seek legal advice?”. Two words in response: “Nope, never”. I wasn’t entirely surprised. The clue is in the name. It’s not ThreeWorkingDaysGram, or LetUsSpeakToTheLawyersAndGetBackToYouGram; it’s INSTAgram. Instant. In my experience there seems to be an oddly furtive trepidation amongst the influencer community that for every one blogger who takes a brief recess to email their advisors, there is another practically identical young person on the conveyor belt, with about the same number of followers, willing to put the ad up instantly and get paid in the next five minutes.

My source tells me, however, that she was, in fact, once presented with “a big written thing”, for one particular brand she had agreed to promote. And although it seems to defeat the purpose of quick, cheap and cheerful advertising for a business, to have to consult with your solicitor to prepare “a big written thing”, I commend that particular brand for investing a small amount of time and money, and in doing so robustly protecting both its own interests and the interests of its ambassadors. It begs the question, however, why are only some brands taking proactive steps to protect themselves, while others acquiesce to the myriad of potential legal issues associated with influencer marketing?

This dichotomy of “big written things, or nothing” does not need to exist. In taking a “prevention rather than cure” approach to social media advertising, and implementing simple, standard contracts, you will save yourself and your company from a potential world of pain and legal fees in the long run. At Keystone Law, we have over 300 specialist solicitors who are experts in their various disciplines. We can provide a wide range of legal services relevant to any sensible businessperson or influencer seeking to protect themselves in this grey area whilst still taking advantage of the phenomenal and modern opportunities offered by social media.

Are you “under the influence”? Get in contact with Keystone Law to get ahead of the rest.