By Paulo Brancher, Camila Taliberti
Influence marketing is defined as the art and science of engaging people who are influent on the web for sharing posts of certain brand with their followers, in the form of sponsored content.
Through the influence marketing, anonymous people are capable of gathering thousands, if not millions of followers. They became real celebrities on the web by promoting their lifestyle but in the end of the day they wield great power over the behavior and mindset of their public, similarly if not more efficiently than celebrities` influence by traditional media advertising. That is because everything is done in the most natural possible way.
But we should not forget that if the recommendations of products and services by the influencers are being paid, we are indeed facing an advertisement. Because of that the formalization of a contract between the brand and the influencer is recommendable in order to define all legal aspects, such as: scope of services and contents, remuneration, rights of image and intellectual property and obligation to comply with applicable legislation, mainly the Brazilian Consumer Defense Code and the Brazilian Advertising Self-regulation Code.
Scope of services
The contract should indicate clearly how the content is to be disseminated by the influencer on her/his social media (e.g. express mention of the brand, use of certain expression that define the brand, clothes, accessories, etc.), which is the extension of the content (number of words, length of video, etc.) and the schedule of publications.
Compensations
When establishing compensations for the service, the parties should define deadlines and the payment schedule. It is worth remembering that both payment in cash or gifts – these also have economic value – incur in tax obligations. Therefore, the influencer should provide the respective invoice and other applicable tax documents.
Legal Obligations
The contract should provide warranties to the contracting company against situations in which the content or attitudes of the influencer cause reclaim of rights or lawsuits against the contracting company.
Additionally, warranties should be defined in the event of partial or total breach of contractual obligations, in such way that each party has the right to terminate the contract if the breach has not been corrected.
Rights of Image and Intellectual Property
Both the brand and content created involve right of image and intellectual
property.
Firstly, the contract should provide that the influencer will not use or explore (or allow a third party to use or explore) the brand signs and logo without previous writing permission by the contracting company. Moreover, the influencer should refer to the brand in a polished way, avoiding damages to the image of the contracting company.
On the other hand, the contracting company should also obtain the influencer’s authorization to use her/his image for commercial purposes and reproduce the content created in its own web site or social media. It is worth mentioning that the personal image is protected by the Brazilian Constitution and the right to compensation for property or moral damages resulting from their violation is ensured.
The parties should also establish an intellectual property clause. Obviously, the created content cannot violate third parties’ rights; for example, using other brands without authorization, as well as texts, images and songs protected by copyright. The content, therefore, must be original and, if the contracting company will reproduce the content, the influencer shall license or assign the copyright over her/his creation.
Information and consumer credibility
As mentioned above, the influence marketing strongly stimulates the consumer behavior, which admires and very often wants to be like the influencer. Because of this, the campaign should take place in a responsible manner, considering the peculiarities of the product or service to be offered.
The Brazilian Advertising Self-regulation Code establishes Honesty as one of the principles of publicity and advertising, stating that “ads shall not exploit the consumers’ credulity, lack knowledge or inexperience”. The Code also establishes the principle of Advertising Identification, by which any attempts to produce “subliminal” effects over advertising are condemned. When this occurs, we are facing the so called thinly-veiled advertisement.
The Consumer Defense Code also expressly forbids thinly-veiled advertisement stating that “publicity must be shown in such way that the consumer will easily and immediately identify it as such”.
Cases of denounces to CONAR (the National Advertising Self-Regulating Council) for thinly-veiled advertisement have been quite common in campaigns with digital influencers. For this reason it is recommended that the content must be always followed by expressions such as “experience offered by the brand” or “sponsored content” or “advertising” or “publipost”.
Moreover, the Consumer Defense Code establishes that advertising obliges the dealer in such way that the consumer has the right to require compliance in the exact terms in which the product or service was offered. Thus, it is important that all the qualities of the product or service mentioned by the digital influencer be truthful and can be complied by the contracting company.