TikTok TikTok, time to understand influencer engagements

Regardless of your social media channel of choice – be it Instagram, Snapchat, Facebook or TikTok – it is impossible to scroll through your feed these days without being confronted by influencers and affiliates leveraging their social media followings to spruik products and services for third parties.

We recently published an article Advertiser beware: How to avoid being conned by #sponcon on social media on the potential pitfalls of influencers failing to adequately disclose the commercial nature of their brand affiliations and sponsored posts in their social media content. But breaching these obligations is only one way that brands can find themselves in hot water when engaging an influencer or affiliate.

As part of our ongoing Marketplace In Conversation webinar series, we spoke with Rebecca Waddell, in-house counsel for ByteDance (owner of the social media platform TikTok), about some of the common challenges of navigating the lucrative, but complex, world of influencer marketing.

In this article, we provide some practical tips on how to proactively identify and minimise risks when engaging influencers and affiliates.

Top tips for brands when engaging an influencer

Do your due diligence

Brands should carry out due diligence before engaging an influencer to ensure that their core values and target markets are aligned. This will ensure that brands get the value they are expecting from the engagement, and also that consumers see the partnership as authentic and trustworthy. As Rebecca comments, “consumers are pretty savvy these days, they like influencers and brands to be authentic in the ads that they are delivering and the collaborations they are working on”. For example, “if previously they’ve done things like lots of pizza adverts or fast food and then you’re suddenly asking them to do a green healthy living lifestyle type collaboration, it just won’t work”.

Include clear contractual deliverables

As our article Advertiser beware: How to avoid being conned by #sponcon on social media illustrated, compliance with the Australian Association of National Advertisers Code of Ethics, including the requirement to adequately disclose where an influencer’s content has been posted in exchange for the payment of money or free products or services, is a growing concern for advertisers and consumers. In light of this, it is critical to include clear contractual deliverables, for example, by incorporating requirements of adequate hashtags, and by providing influencers with general guidance on their responsibilities and liabilities, both under the Code and prohibition against misleading and deceptive conduct under the Australian Consumer Law more broadly. Rebecca suggests that brands go “the extra mile when working with an influencer that they know what a misleading claim is…they can’t go around saying this product is the most amazing thing because of X, Y, Z and it’s not actually true”.

Consider sourcing influencers through an agency

One way to assist in managing risks is to source influencers through an agency, rather than individually. Not all influencers are adequately equipped with the necessary legal know-how, and may require significant assistance throughout the contractual process. By contrast, agents allow for a smoother and more efficient on boarding process. Although agencies typically charge a fee for these services, Rebecca believes that such fees are appropriate given the professionalism and efficiency that agents can offer. In any event, these fees are likely to be well-spent if they can help both parties avoid the time, costs and reputational risks associated with inadvertent breaches of the Code or the Australian Consumer Law! Rebecca also recommends ensuring that there is an inducement letter included with the agency agreement, to ensure that the influencer is also aware of the implications of the arrangement for them.

Remember the global reach of social media

Brands should be cognisant that online posts have the potential to reach global audiences. As a result, it is important for brands not only to ensure that they are complying with the relevant regulatory requirements in Australia, but also to consider the requirements in other countries, which can vary (sometimes significantly) from jurisdiction to jurisdiction. More practically, Rebecca recommends that if an advertiser is aware that a specific jurisdiction will be the target of a post or promotion, the influencer contract should be prepared or updated to reflect this and the influencer informed of their obligations and liabilities accordingly. Given the different requirements and standards in different jurisdictions, this may also require seeking local legal advice.

Consider ownership of the intellectual property in influencer marketing content

The content created by influencers as part of brand partnerships can be diverse and valuable. Under copyright law, the ‘author’ or creator of a piece of work, like a video or photograph, is the owner of that work, and Rebecca explains that the generally accepted position within the industry is that the influencer will own the content they create. However, if a brand wants to obtain an assignment of any content created for a campaign, this can be built into the contract from the beginning, which may be worth considering if a brand wants to ensure it has the ability to make use of the content in another way down the track.

Retain robust approval mechanisms

Rebecca notes that brands should not “throw all of their experience in working in traditional campaigns and knowledge out the window” when working with influencers, noting that it is still possible to retain control over the content of influencer marketing by having robust review and approval mechanisms built into the contractual arrangement. This ensures that brands can review proposed content prior to posting to ensure it aligns with their values and executes on the vision for the campaign.

With thanks to James Miotto, Graduate, for his assistance in drafting this article.