1. Be clear about the scope of the contract
Influencer marketing is multifaceted. The contract should clarify at least the following topics:
- What is the collaboration? This can range from a one-off collaboration for a promotional campaign to a brand ambassador contract.
- What form of influencer marketing? These can be varied: the creation of promotional content (videos, posts, stories, etc.), product placement, products or services testing, promotional contests, interviews, participation in physical events with the posting of photos, live videos or debriefing, etc.
- On which platform(s)? Influencers are often active on different platforms and it is important to specify, depending on the nature of the marketing operation, which platform(s) must be used.
- How? The companies must obviously clarify practical details, such as for example the number of posts or stories, the message, the length of the video, the time at which the content should be posted, the length of time the content must be kept on the account, etc.
The company may also reserve the right to prior approval or to have the content modified before it is posted on the social network(s).
In return for this service, the remuneration to which the influencer is entitled must be well defined. It can be monetary and/or in kind (i.e. products or services), for example by receiving the products the influencer tests or by being invited to events.
In the latter case, it is advisable to indicate the exact or estimated amount of the product or service in the contract, as well as the services covered and not covered.
Payment arrangements should also be set out, e.g. a first payment at the contract’s conclusion and the remainder after the performance of the influencer’s marketing service. It is also important to specify whether or not the costs of creating the content are included in this remuneration.
2. Get accurate statistics
Influencer marketing is all about the influencer's social networks and companies have an interest in getting as much information as possible about the impact of their collaboration with the influencer.
In some cases, companies can directly analyse the impact of an influencer’s marketing operation. For example, when the influencer encourages their followers to use a specific promo code, the companies can track how many orders they have received using this promo code. Companies can also check a post’s number of likes or shares. In other cases, companies do not have a clear view of the statistics related to the content’s publication (e.g. the number of views or clicks, audience data, etc.).
It is then highly recommended to insert a reporting clause by which the influencer will communicate to the company the statistics related to the publication. If necessary, the contract should also include requirements for the collection of analytical data (integration of tracking tools, use of efficiency measurement tools, etc.)
3. Manage content rights
Ownership of content and its subsequent re-use by the company are key points to be addressed in the contract. This has been the subject of a blog post available here.
Depending on the contract’s scope and the capacity in which the influencer is hired, it is important to include exclusivity and non-competition clauses in the contract.
The effectiveness and credibility of an influencer marketing campaign would be jeopardised if the influencer were to promote a competitor’s products at the same time or in the near term, or if they were to launch their own competing product range.
Such a clause must be carefully drafted as it is subject to regulation under Belgian and European law. It must in any case be proportionate and limited in time according to a case-by-case analysis.
5. Make sure the influencer follows the rules
Even if influencer marketing is not subject to a specific legal framework under Belgian law, there are many rules that influencers must follow. Since they will be publicly representing your brand and/or products and that your own liability may be involved, you should take all the necessary guarantees in your influencer contract concerning respecting these rules. We highlight here two types of rules that the influencer must commit to:
- The transparency rules: You must ensure that the influencers clearly indicate that their publications are advertisements. For this, it is recommended to use the feature offered by the social network (“paid partnership with”) or to add a statement or hashtag ‘advertising’ in a visible way at the beginning of the publication. In addition, the advertiser's name should be clearly stated in the publication, for example by means of an @ tag.
The five points above are particularly important for negotiating in an influencer marketing contract but they are not the only ones. Consider, for example, liability or termination clauses (e.g. in the event that the influencer ends up in the media for the wrong reasons).
Influencer marketing is so varied that it offers many possibilities. On the other hand, its success relies above all on the fame of a person, who can sometimes be very young and have little support, which is why companies must carefully choose their partners and protect themselves contractually.
Whereas in traditional forms of marketing, a company or its advertising agency has control over the advertising and bears responsibility for failure, companies largely delegate this control to influencers but in the case of failure or problems, established companies stand more to lose. Caution is therefore advised!