The digital domain still contains many legal loopholes and influencer marketing is not spared from this situation. However, you want to seal the collaboration with your influencer as well on the form as on the substance, even if legally nothing obliges you there…

How to deal with the absence of a standard contract? You do not know which clauses may prove useful or even important to the formation of your agreement?

Here are some elements that you may need for your present and future commitments.

Influencer marketing: a total legal vagueness?

Legally, the doctrine says that one should not frame too quickly and too precisely. Faced with digital developments, it is not always easy to legislate. Time to observe and step back is necessary.

Influencer marketing was no exception to this reflection period. Since then, in order to adapt as much as possible to digital technology, the legislator has put in place various articles, in particular concerning online advertisements. These are, in fact, the subject of an innovative format compared to our usual advertisements and must, therefore, be framed. For a time, YouTube has been singled out for the lack of transparency regarding certain advertising collaborations with renowned influencers. Some of them ended up accepting to play the game and began to clearly mention their partnerships; others continued to bet on the card of silence (and dishonesty).

What does the law ?

He is far from silent on this subject and is unequivocal in relation to digital advertising.

Article 20 of the law for confidence in the digital economy of 2004 (known as LCEN) states that ” Any advertising, in any form whatsoever, accessible by an online public communication service, must be able to be clearly identified as such. It must make clearly identifiable the natural or legal person on whose behalf it is carried out ”.

Article 49 of the Law on a Digital Republic of 2016 also makes changes to Book 1st the Consumer Code regarding consumer information and business practices; succinctly, article 111-7 II 2 ° thereof requires any operator of online platform to provide the consumer with fair, clear and transparent information on the existence of a contractual relationship as soon as it influences the ranking or referencing online content.

The beginnings of online regulation

The ARPP (or Professional Advertising Regulation Authority) implemented in 2017 a recommendation on digital advertising communication. This defines the influencer as ” an individual expressing a point of view or giving advice, in a specific field and according to his own style or treatment and which his audience identifies And brings together the three cumulative criteria for advertising collaboration:

  • The content is produced in the framework of reciprocal commitments, the speaking of the influencer being the subject of a consideration or a payment.
  • The influencer exercises preponderant editorial control as well as validation of the content before publication.
  • The content using the influencer’s speech is aimed at promoting a product or service.

Also, this recommendation gives a definition of native advertising. It insists on the identification of the advertising character (with an explicit mention such as “advertising” or even “sponsored by”) as well as the respect of a fair, truthful and honest advertising ” given their editorial appearance “. There is therefore a rejection here of the practice of misleading advertising towards the consumer.

The only hashtag mentions such as #ad or #sp are therefore now insufficient to signify sponsored content. In this context, Instagram has set up a system allowing influencers to share their publication which is the subject of a paid partnership.

It therefore appears that French law provides some clarification on the place of influence and content marketing. However, it appears that despite these provisions, there is still a lack of will to apply the rules.

The content of your agreement

It is essential to balance the contract that you are going to establish between the two parties, in this case between the influencer and yourself. There is no obligation that the contract be written: it may be oral, but be aware that even if you commit your good faith, this may pose a problem of proof if a dispute ever arises.

If the identification of the parties and the object of the contract remains essential, you are free from the content of the agreement. However, it remains essential to the viability and solidity of your contract.

Fixing the compensation

A subject which can annoy, of course, it is nevertheless an essential clause for the proper functioning of your partnership. It is therefore important for your influencer to know what type of benefit he will receive following the collaboration, especially if he is not pecuniary. In this case, the contract must precisely define the nature of the compensation and describe as precisely as possible what is your responsibility, for example if it is a trip. If the exchange is an offer of products for the influencer, indicate the market value in the contract.

On the other hand, if the gratuity is pecuniary, the agreement must state the amount that will be paid to the influencer. Also, prefer to pay a deposit before the execution of the contract and the balance upon completion of it.

Duration of partnership and deadlines

This clause is in principle not mandatory. However, given the nature of the cooperation, it is preferable that you indicate this in your agreement.

First, you must specify the duration of your partnership, while knowing that perpetual engagements are prohibited. Even if you wanted to, your collaboration cannot last ad vitam aeternam (legally, you can’t go beyond 99 years of society, but you won’t go that far …). So be sure to specify an end date for the agreement!

You must then indicate the duration of approval of the content that will be published, the days and hours on which the articles will be posted (beware of the choice of time zone!), And the dates on which the publications may or should be deleted.

The exclusivity clause

Another essential, if you want to prevent your influencer from working with another competitor during the partnership. This is an exclusive benefit for the benefit of a single operator. If you want to activate this clause, you must therefore determine the delivery time because no, this influencer may not be only available to you until the end of his life.

Also be sure that if you make use of this clause, the remuneration should go hand in hand. Indeed, the influencer agrees to team up only with you, so expect a small increase in his salary.

The intellectual property clause

This is a clause recognizing the copyright of your influencer if he is the one creating the sponsored content. You can include in the contract a reuse clause for all or part of the content, as well as the media used. But beware: this can only be done for a fixed period, otherwise the clause will be considered unfair.

Platforms such as getfluence.com allow flexible and direct collaboration between brands and influential sites. Indeed, it is possible for both parties to define the content that will be published but also to negotiate the price and the date of publication of the content.

N ° 1 in the relationship between advertisers and publishers on the European market, getfluence relies on a quality partnership and above all a win-win emphasizing the balance required in any agreement.

For the influencer, there is a definite increase in his income. The brand, for its part, wins by the change: increased visibility, increased traffic and awareness. So many reasons to trust the European platform for the execution of a service in due form.

Article written in collaboration with getfluence.com