An ever increasing number of Influencers such as film stars and media personalities are using social networks to promote company brands. These brand advocates move the needle on consumer decisions by sharing a post with their followers on a social network. The follower may think the post is perfectly innocent. In truth, the content of Influencer’s post is disguised advertising that the brand pays for in order to promote a company product. Thus, the term innocent’ is the very last adjective that should be used to describe this practice.

From a legal perspective, the post constitutes the provision of services by the Influencer in exchange for payment from the brand. Consequently it is highly recommended that the provision of these services is regularised by a contract.

As I have already explained in another thread concerning the nature of the contractual relationship between the Influencer and the brand, it is standard practice for the Influencer and the brand to define the nature of that relationship through a commercial contract for the provision of services. This contract is of paramount importance for the brand, as the Influencer is not usually a member of the brand’s organization and has no professional knowledge of how its advertising works. In the event that the Influencer writes posts which ultimately damage the brand, it is essential that the possible harmful effects on the reputation of the brand and the measures to be taken are clarified in the contract in black and white. The key aspects of that contract between the Influencer and the brand are as follows:

1. Although it is true that the contract is not a conventional one, and therefore does not have the typical contractual structure, it is recommended that it is formally drawn up in writing and signed by both parties.
2. The contract must clearly define the type of services that the Influencer will provide and their scope. The most sensible course of action is that a calendar is agreed on by both parties, which specifies the number of posts the Influencer will make and how often they will be made. The contract can go into more detail and specify the social networks where advertising should be posted, the duration of the videos and even details of the text to be included at the foot of the advertisement. Moreover, there must be an agreement as to which products the brand will provide the Influencer with and when they will be provided.
3. The contract should include a confidentiality agreement with the same validity as the contract between the Influencer and the brand.
4. Likewise, the contract may be exclusive or it may not be. In the event that the contract is exclusive, the Influencer can only advertise products for the brand that contracts him/her, and will be fined if he or she promotes competitors’ products. Therefore, it would be advisable to indicate very clearly in the contract that the Influencer is prohibited from advertising other products.
5. The duration of the contract will be freely agreed by the parties and the contract must have a description of reasons for termination.
6. The Influencer’s remuneration must be clear. The remuneration can be in cash or payments in kind (gifts), or a combination of both, as is common practice. In addition, some contracts may have a bonus which is dependent on the targets reached.

It should be clear that the points that have been outlined have only dealt with the very basic aspects of a contract between an Influencer and the brand. These types of contracts are complicated and that from the beginning of negotiations to the end point of signing the contract, all kinds of issues arise that require the advice of a lawyer who is an expert in the field.

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