Influencer Marketing- Tips for Influencers, Social Media Agencies, Brands and Consumers

Earlier this year I shared a post, “Social Media Influencer Liability.” It focused on legal liability issues facing influencers and shared tips to help them make smart decisions.

Based upon what recently happened with the Fyre Festival, I thought I’d share these additional legal tips to help everyone in the process protect themselves. Different players in the promotion and consumption chain have different levels of liability exposure and so I hope you find these tips useful.

Things Brands Should Think About

If using a social media agency as an intermediary, enter into a written influence marketing agreement with the agency. In addition to all the standard terms and conditions, make sure your agreement also contains the following clauses:

Clearly state that the social media agency is responsible for the influencer being made aware, in writing, of and following all local, state, and international marketing rules and regulations. This includes FTC requirements.
Specify what the social media agency and influencer can and cannot do. While you want to give the influencer flexibility to do what he or she does best, you also need to set clear boundaries as to what is and is not permitted.
Specify that the social media agency and influencer both secure liability insurance.
A liability waiver and indemnity agreement should be part of your agreement. Thus, if the influencer breaks the law or acts in a way the creates liability, and you get dragged into a claim or lawsuit, the social media agency and influencer both agree to provide your defense and reimburse you for all claims, expenses, and damages.

Things Social Media Agencies Should Think About

When providing services to brands and, entering into formal promotional relationships with influencers, use standard written agreements. Make sure these agreements include the following:

In your agreement with the Brand: Describe in detail, what they would like you to do and which platforms they would like the influencer to use.
In your agreement with the Brand: Make sure the Brand sets forth, in writing, exactly what is and is not permitted during the social media agency and influencer’s promoting efforts.
In your agreement with the Influencer: Have the Influencer confirm that he or she is responsible for being made aware of, and following all local, state, and international marketing rules and regulations. This includes FTC requirements.
In your agreement with the Influencer: Specify what the influencer can and cannot do. While you want to give the influencer flexibility to do what he or she does best, you also need to set clear boundaries as to what is and is not permitted.
In your agreement with the Influencer: Specify that the influencer is required to have and maintain liability insurance.
In your agreement with the Influencer: A liability waiver and indemnity agreement should be part of your contract. Thus, if the influencer breaks the law or acts in a way the creates liability, and you get dragged into a claim or lawsuit, the influencer agrees to provide you and your client, all legal defenses and reimburse you for all claims, expenses, and damages.

Things Influencers Should Think About

When providing influence services to social media agencies or if no agency is involved, directly to brands, use standard written agreements. Don’t simply rely on a short text or DM. Make sure these agreements include the following:

The person or company you are contracting with (the Brand or social media agency) clearly describes in detail, what they would like you to do and which platforms they would like you to use.
The details about what is, and is not, permitted during your promotional efforts.
A liability waiver and indemnity agreement should be part of your agreement. Thus, if the Brand does something wrong (think Fyre Festival disaster mentioned above) or the social media agency makes a mistake (tells you to do something that wasn’t permitted), and liability is created, these entities agree to provide you with a legal defense and reimburse you for all claims, expenses, and damages.
Liability Insurance- Get and protect yourself with liability insurance. If you do not have liability insurance, negotiate into your agreement that the social media agency or Brand provides this protection for you. Do not start any promotions until you have written confirmation of the above.
Do business as a corporation or limited liability company.