Influencing has been the modern means of advertisement in the recent world of marketing. Influencing refers to the ability to have an impact or effect on the thoughts, actions, or behavior of others in promoting products or services through social media platforms. It involves persuasion, communication, and other strategies to bring about a change or influence a decision. An influencer agreement is a contract, which stipulates rights and obligations between an influencer and a brand or a product owner. It encompasses the terms and conditions of the business relationship between an influencer and a brand.
Purpose of an influencer agreement:
The primary purpose of a valid influencer agreement is to establish clear expectations, protect the interests of both parties, and ensure that the influencer campaign runs smoothly.
Legal issues to be considered in an Influencer Agreement
In an influencer agreement, it’s crucial to be mindful of various legal considerations to ensure that the agreement is valid, enforceable, and in compliance with relevant laws. Here are some key legal issues to consider:
· Contractual Validity: For an influencer agreement to be valid, all parties involved must understand the terms of the agreement which include an offer, acceptance, consideration, legal purpose, and competent parties to make the contract legally valid.
· Legal Capacity: All parties agreeing to execute an influencer agreement must have the legal capacity to do so. This involves confirming that they are of sound mind, of legal age, and not under any legal disability.
· Compliance with Applicable Laws: A valid influencer agreement must comply with all relevant local, state, and federal laws. This may include industry-specific regulations and licensing requirements.
· Consideration: Consideration is something of value between the parties in exchange for the promises made in the agreement.
· Duration: The agreement must have a commencement time and the time at which the agreement will end.
· Confidentiality and non-disclosure: If the agreement involves sensitive information, provisions for confidentiality and non-disclosure to protect proprietary or confidential information must be included.
· Dispute Resolution Mechanisms: This is the method of resolving disputes in the agreement, whether through arbitration, mediation, or litigation.
· Force Majeure: An influencer agreement must address the issue of unforeseen events or circumstances that may affect the ability of the parties to fulfill their obligations.
Right of an Influencer and a Brand under Influencer Agreement
A valid influencer agreement is not different from a typical contractual agreement. It is a simple contract for services. Generally, influencer agreements are legally binding contracts that set forth the expectations, obligations, and rights of both parties. The rights of an influencer and a product owner in the event of a breach of a valid influencer agreement would depend on the specific terms outlined in the agreement itself, as well as the applicable laws in the relevant jurisdiction.
Rights of an Influencer in case of breach:
1. Compensation: The influencer may be entitled to compensation for the agreed services in a situation of breach of the agreement. This could include payment for content creation, promotion, or any other services specified in the agreement.
2. Termination: The right to terminate the agreement if the product owner fails to fulfill their obligations or as agreed upon.
3. Legal Action: An influencer may have the right to take legal action to enforce the terms of the agreement or seek damages for any harm caused by the breach.
Rights of a Product Owner or Brand in case of breach:
1. Quality of Content: If the influencer fails to deliver content of the agreed quality or standard, the product owner may have the right to request revisions or corrections. The contract may outline the specific requirements for content creation.
2. Termination: The product owner may have the right to terminate the agreement if the influencer fails to meet their obligations. This could include failure to deliver content on time, failure to adhere to brand guidelines or other specified breaches.
3. Legal Action: If the influencer’s breach causes financial harm to the product owner or damages the brand, the product owner may have the right to take legal action to seek compensation or enforce the terms of the agreement.
It’s important to note that the laws governing contracts and commercial relationships will play a role in determining the enforceability of these rights.
Liabilities of an Influencer and a Brand
In Nigeria, the liability of an influencer and a product owner for the product they influence can be subject to various legal considerations. The liability can arise in various legal contexts. Here are some key considerations:
Liability of an Influencer:
1. Deceptive Practices: Engaging in deceptive practices, such as misleading followers about the benefits of a product could lead to legal consequences.
2. Endorsement Disclosure: Influencers often must disclose their relationships with brands. Failure to do so may violate advertising regulations and result in a liability.
3. Mischaracterization of Product: An influencer may be liable if he/she makes false statements or reviews that harm the reputation of another person’s business or product during the influencing or advertising.
Liability of a Product Owner or Brand:
1. False Advertising: The product owner may be held liable if they provide false information about their product in the influencer’s content.
2. Quality and Safety Standards: If a product does not meet quality or safety standards, the product owner may face liability for any harm caused to consumers. It is immaterial if the product owner does not sell directly to the consumer, the brand will still be held liable for negligence. This is the decision of the court in the celebrated English case of Donoghue v Stevenson (1932) AC 562
3. Regulatory Compliance: The brand or product owner has a responsibility to ensure the advertised products have been duly licensed or authorized for use by the regulatory authorities where it is required. Failure to obtain necessary regulatory approval before advertising a product for use or distribution, when necessary, will lead to liabilities against the brand.
Influencers and product owners need to be aware of and comply with relevant laws and regulations governing their activities. Additionally, influencers should carefully review and adhere to the terms of any agreements they enter into, ensuring that they fulfill their obligations ethically and legally. Seeking legal advice can be beneficial to understanding the rights and obligations of both parties.
By Corporate & Commercial Law Team at Resolution Law Firm