These content creators are able to bridge the trust gap between brand and consumer and the influencer marketing industry is now worth an estimated $21 billion worldwide.

Usually focusing on one niche market, such as fashion, food, or gaming, ‘influencers’ build communities of followers and then partner with brands to promote products, events or services to their fans.

Quite simply – these content creators influence their followers to take action.

So, when considering working with a content creator to boost engagement with your brand, what are the key legal issues to consider?    

Content Creator Agreement

You should have a contract in place with the content creator which sets out:

• The ‘live period’ during which the content must remain on the platforms.

• The term of the arrangement, usually beginning on an ‘effective date’ until expiry of the ‘live period’ of the content.

• Obligations: what would you like the content creator to do? Usually work with your business to create the brief; produce a certain number of posts and provide analytics on them.

• Your right to give at least two rounds of edits / feedback and final approval on the content before it goes live.

• Details of the platforms and handles on which the content creator will post the content.

• An exclusive period during which the content creator cannot post any content regarding one of your competitors.

• Budget of the paid promotion that you can put behind the content.

• Your right to have the posts taken down and to terminate the agreement if the content creator does or says anything that may bring your brand into disrepute.

• Requirement for the content creator to comply with all applicable laws and regulations.

• The fee, usually payable upon completion of all services and content to your reasonable satisfaction.

Rarely does the content creator assign their intellectual property rights in the content to the brand; rather, they grant a non-exclusive licence to the brand to use their content and name in connection with a campaign for a certain period.

Regulatory Requirements

The key regulatory bodies monitoring the influencer marketing space are:

• Advertising Standards Authority (ASA) – this is the UK’s advertising regulator, making sure ads stick to the CAP Code.

• Committee of Advertising Practice (CAP) – this body is responsible for writing the CAP Code.

• Competition and Markets Authority (CMA) – UK’s primary competition and consumer authority. Responsible for investigating mergers etc, regulated industries and enforcing competition and consumer law.

The CAP Code, enforced by the ASA, applies to most forms of influencer marketing. The Code is broken up into sections containing rules that relate to different subjects. For example, Section 2 contains rules about how ads should be recognisable as ads, and Section 3 sets out rules that advertisers must follow to avoid misleading people.

Consumer protection legislation, enforced by the CMA, also applies to influencer marketing. This makes ‘unfair commercial practices’, including using ‘editorial content in the media to promote a product where a brand has paid for the promotion without making that clear in the content’, against the law.

What counts as an ad?

Content will be deemed an advertisement if the brand has:

• ‘paid’ the content creator in some way (including in freebies or other non-monetary payment); and

• had some form of editorial ‘control’ over the content, including just final approval.

Under the CAP Code ads ‘must be obviously identifiable as such’. This means that consumers should be able to recognise that something is an ad, without having to click or otherwise interact with it.

Since it needs to be ‘obvious’, consumers shouldn’t have to work too hard to figure it out. “Paid promotion” and “AD” are recommended. The terms “Spon” and “In association with” are not.

The ASA has published specific guidance on how it expects influencers to comply with the CAP Code.

Other things to think about…

If you want the content creator to make claims about your products, you’ll need to have the evidence to back them up.

If you would like to advertise age-restricted products such as gambling or alcohol, you can’t work with a content creator whose target audience is under this age of 18.  

What has the ASA done about non-compliance so far?

Non-compliance with the regulations can harm the reputations of both creators and brands.

The ASA have webpage dedicated to naming and shaming content creators who have repeatedly failed to disclose that their posts were ads. The ASA are also proactively monitoring platforms and sanctioning those who have failed to comply.

If you need help with engaging a content creator for your next marketing campaign, just let us know.