Disclose the relationship between the influencer and brand. Part of the appeal of hiring an influencer for a marketing campaign is the authentic feel of the endorsement. However, the FTC’s the Guides Concerning the Use of Endorsements and Testimonials in Advertising require influencers to disclose “material connections” that they have with the brand they are endorsing. A connection is deemed “material” when the relationship between the influencer and brand may materially affect the weight or credibility of the endorsement from the influencer. 16 C.F.R. § 255.5 (2009). An obvious example of a material connection is one where the brand is paying the influencer to endorse or review a product, but even friendships or familial relationships between the influencer and brand are material, as the influencer may be more likely to give a product a positive review because of this relationship.
The disclosure of the material connection must be clear and conspicuous. For example, a disclosure that consumers can only see if they click to see more of a post, or ambiguous hashtags such as “#ambassador” or “#collab,” are insufficient to meet the FTC’s disclosure requirement. On the other hand, the FTC has stated that “#ad” close to the beginning of a post is a sufficient disclosure. Both the influencer and the brand may be liable for the influencer’s failure to disclose a material connection, so brands must be sure to inform influencers of the duty to disclose and monitor the influencers’ posts to ensure compliance with the FTC Guides.
The claims in the endorsement must be truthful. Claims made by a social media influencer in an endorsement must be truthful and substantiated. This means that advertising claims cannot be misleading to the average reasonable consumer, and any statements made about a product or service must be supported by evidence. Even if the influencer makes a misleading or unsubstantiated claim about a product without consulting the brand, the brand will still be liable the influencer’s statements. Again, this highlights the importance of monitoring the influencer’s posts and providing the influencer with guidelines about what claims he or she can legally make about the product or service being advertised.
Determine who owns the intellectual property rights in the content. In a typical company/influencer relationship, the influencer will post a photograph and accompanying text exhibiting the brand’s products or services on the influencer’s social media account. If the influencer created this content, the influencer owns the copyrights to it, and the brand could be liable for copyright infringement if it reuses this content without the influencer’s permission. To avoid this issue, the brand should ensure that there is an agreement in place between with the influencer assigning the copyright to the brand.
Obey the reposting rules from each social media platform. It’s a common misconception that all of the social media platforms have the same rules regarding reposting content from another user. The reality is that reposting user content on some platforms is perfectly acceptable, while on others it constitutes infringement. For example, on Twitter you may freely repost Tweets from other Twitter users. By becoming a Twitter user, you agree to Twitter’s Terms of Service, which permit you to “Retweet” the content of other Twitter users and allows other Twitter users to Retweet your content. Instagram, on the other hand, does not include any such provision in its terms of service, and even requires users to “agree to pay for all royalties, fees, and any other monies owing any person by reason of Content you post on or through the Instagram Services.”
Make sure the content does not infringe a third party’s rights. Even if the brand and influencer have reached an agreement regarding the ownership of the content in a social media endorsement post, the post may infringe the rights of a third party if it includes a third party’s image or artwork. If someone’s image is used in the endorsement, this person may claim a violation of his or her publicity rights. Similarly, the use of another’s artwork in the content of the endorsement may constitute copyright or trademark infringement, subject to the fair use defense (which is less likely to apply to a social media post that is clearly an advertisement).