In recent years, brands have used influencer marketing and sponsored posts to reach their target audience. While there isn't an accurate definition of an influencer, the term is often used broadly to describe someone who can use their large followership to impact people's buying decisions. 

While influencer marketing has proven to be one of the most effective social media marketing strategies, it has also raised questions about its ethics and legality. This is especially true with the emergence of virtual influencers who are not real humans. This article will evaluate the legal and ethical considerations, especially in an evolving influencer marketing field.

Legal Considerations in Influencer Marketing

When engaging an influencer, brands should consider the following legal considerations:

Creating Formal Contracts

When collaborating with influencers, brands must recognize that they are getting into a formal contract. Therefore, they need to perform due diligence on the potential influencers before they can engage them. They can check through previous posts of an influencer or may require disclosure of any previous controversial incident they may have experienced. For instance, if you are a health and fitness brand, you may not want to be associated with an e-cigarette influencer for both commercials and legal reasons.

Any influencer marketing contracts should have the relevant warranties that influencers will not behave in a manner that may harm the brand image. This could be by posting content that is violent, homophobic, extremist, racist, or any other that may spark the public's anger.

Responsible Marketing

Many brands tell lies about what their products can do to woo customers, which is unethical. Instead, brands and influencers should provide realistic expectations of what their products can do. Their content should be compliant with the FTC regulations on advertisements and endorsements. Additionally, when you are honest about what your products offer, your audience can have realistic expectations. If brands don’t monitor what influencers are doing, they can end up on the wrong side of the law.

Well-Defined Terms of Engagement

Influencers are leveraging various tools, including virtual characters, to create content. If you are for or against such kind of content, you need to have well-defined terms of engagement.  This should also clearly define other details, such as:

• Campaign period.
• Go live updates.
• Expected deliverables.
• Platforms to publish content.
• Payment methods and deliverables.
• Whether to promote influencer products.

For instance, when engaging in a multiple-channel campaign, you can make several different videos for TikTok or use an excerpt of the content you initially made on YouTube. When creating an agreement on payment models, you need to define whether the influencers will be paid a fixed rate for each post or if they will be working as influencers.

While brands may prevent influencers from promoting their competitor products, this may not be feasible as influencers often have a niche following. Such restrictions may be against competition laws in most jurisdictions. However, brands can reduce this risk by restricting exclusivity to a particular region.

Issue of Intellectual Property and Publicity Rights

You need to have clearly defined the owner of the copyrights of the content created by the influencer, whether it should be to them or to the brands that commission them. Generally, this is often deemed commission work and will theoretically belong to the brand that commissions the work. However, it also requires a clear definition as there will be use of third-party properties that may also have intellectual rights, such as video sound effects.

Additionally, since influencers' content is often posted on third-party platforms such as Instagram and TikTok, the creator and the brand will be bound by the terms of service of the third-party platform. If they use an influencer marketing hosting platform, the assigning platform may be the holder of the rights to the uploaded content.

If the brand wants to publish the deliverables on its preferred platform instead of the influencer-hosted channel, the agreement should also clearly define this. No matter what arrangement the brand and the influencer agree on, this must be clearly defined.

Ethical Considerations in Influencer Marketing

When engaging an influencer, you also need to consider the ethical considerations of such a move. You also need to ensure that you work with influencers with the same ethics as you. Here are the key issues to consider:

Be Transparent

For your brand to be seen as ethical, it must work with transparent influencers. When they create content for your brand, they should indicate that it is sponsored content. Failure to do so may violate the rules of their platform and anger your target audience.

Another way to be ethical is to avoid misleading language that blurs the line between paid promotions and organic content. Some influencers try to draw audiences by hiding from them that they are dealing with ads. Therefore, brands must discuss their disclosure requirements with their target audience to ensure they align with their platforms' guidelines.

Creating Authentic Content

It is also ethical for influencers to express their honest opinions and experiences with your brand in social media content creation. If there is something they don't like, they should reveal that. Their audiences will see them as open and realistic when they do that. Some brands often pressure influencers to provide positive reviews or inauthentic endorsements, which is unethical. 

Final Thoughts

Working with influencers can be a good way of getting information about your products or services. If your marketing efforts aren’t bearing fruit, perhaps it's time to try influencer marketing. However, when making that decision, you must consider legal and ethical issues. By doing that, you can easily avoid legal problems and spoil your brand reputation if your audience discovers your influencer's unethical practices. You can also read our guide on influencer marketing trends.