10 Jul 2018

Want to use a social media 'influencer' in your latest marketing campaign? A few things to consider

Is your company considering using an "influencer" (an individual with a large social media following) to promote your products, services or brands? Although there are a myriad of matters to consider, if this is your first time dipping your toes into this world, here are a few points to ponder. MSI's South Carolina and Georgia law member Smith Moore Leatherwood LLP explains what you should consider if doing so.

Will the influencer be bound by a written agreement with certain metrics? Make sure your contracts with influencers adequately protect your brand. Basic terms of the relationship should be set forth in writing - compensation, frequency of posts required, platforms on which posts should be made, whether you require review of the post before publishing, and remedies for noncompliant posts. Additionally, information regarding post content, prohibited content and appropriate disclosures should be included. The growing library of FTC guidance documents - described in more detail below - is a great place to start in deciding what information to share with your influencers. You may want to include a copy of these FTC guidelines in your contract. Things to consider in case a campaign goes awry include morality and indemnity clauses, as well as making sure the company has quick access to content if a post needs to be edited or taken down. It is a good idea to monitor your influencer's posts about your business, and to go over your guidelines and expectations long before the posts ever go up. Your company may also want to adopt a written social media endorsement policy that complies with the FTC's Endorsement Guides. Will the campaign comply with all applicable FTC Regulations and Guidance? This is a hot topic for the FTC. The agency made news last fall for pursuing its first ever enforcement action against individual social media influencers. This was after sending warning letters to over twenty big-name social media influencers earlier in 2017. Luckily the FTC has issued comprehensive guidance for influencers, including the following "Do's and Don'ts for Social Media Influencers"[1]:

clearly disclose any financial or family relationship with a brand;
avoid assuming followers know about all existing brand relationships;
ensure sponsorship disclosures are hard to miss;
do not use ambiguous hashtags as disclosures (i.e. #thanks[brand], #collab, #sp, #spon, #ambassador);
treat sponsored tags, including tags in pictures, like any other endorsement;
on image-only platforms, superimpose disclosures over the images;
do not rely on disclosures that consumers have to click on a hyperlink to see.

It is important to note that the FTC is not stopping with individual influencers - it is also going after noncompliant companies behind the marketing campaigns. Lord & Taylor reached a settlement with the FTC after the agency determined that an otherwise successful viral marketing company did not include proper disclosures to ensure consumers would realize it was sponsored content. The company paid 50 influencers to post pictures of themselves on Instagram wearing the same paisley dress, but failed to disclose they had given each influencer the dress, as well as thousands of dollars, in exchange for their endorsement. In settling the charges, Lord & Taylor is prohibited from misrepresenting that paid ads are from an independent source, and is required to ensure that its influencers clearly disclose when they have been compensated in exchange for their endorsements. We expect the FTC to impose even harsher penalties on non-compliant brands going forward. Have you complied with all platform specific rules? Each social media platform has its own set of rules. Closely review all branded/paid content guidelines of every social media platform the influencer will use for your campaign. Be sure to check these guidelines frequently as platforms change their branded/paid content rules often. Facebook and Instagram recently launched branded content influencer tools - encourage your influencer to use these tools, but don't rely on just the tools alone to guarantee compliance with FTC requirements.

[1] Three FTC actions of interest to influencers, Leslie Fair, FTC Business Blog, article available here: https://www.ftc.gov/news-events/blogs/business-blog/2017/09/three-ftc-actions-interest-influencers

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