As discussed in our previous Insight, the global influencer marketing sector has grown at a rapid rate over the past five years. By collaborating with influencers and content-creators on their marketing campaigns, brands can benefit from being better able to target relevant consumers and customise their marketing to audiences who will engage with their content in an authentic and organic manner.
A key intermediary in this digital marketing process are the talent and marketing agencies who represent influencers, content-creators and brands. In order to protect their clients from the myriad of legal risks involved in conducting business on social media, it is crucial that talent and marketing agencies are aware of the key strategies they can implement to ensure clients stay compliant and protect their brand image while collaborating together. In this Insight, the social media law team at BlackBay Lawyers explores these strategies below:
1. Educate Your Clients on Social Media Laws and Regulations
One of the most important steps that talent agencies can take to protect their clients (i.e. the talent) from adverse regulatory and legal action is to educate their talent about the legal landscape of social media. By providing ongoing training and resources, agencies can assist their clients to make informed decisions when creating and sharing content on online. Relevant areas of law and regulation include:
Intellectual property (IP): Agencies should ensure that their talent understands copyright, trademarks, the importance of crediting original creators when sharing or reposting content, and the content sharing techniques that comply with Australian IP laws.
Advertising and endorsements: Agencies should provide updated and ongoing information about the evolving advertising standards under the Australian Consumer Law, the Australian Association of National Advertisers (AANA) Code of Ethics, and the Therapeutic Goods Administration (TGA). To ensure clients are transparent about their relationships with brands and talent, agencies should establish a minimum standard of disclosure to comply with the regulatory landscape.
Defamation: Agencies should seek legal advice and stay up-to-date with the developments in Australian defamation law, particularly as social media platforms introduce new search and sharing functions that place their clients at risk of liability.
2. Ensure All Contracts and Agreements are Legally Sound
Talent and marketing agencies should ensure each contract entered into by their clients is individually tailored and provides comprehensive guidelines for brands and talent to follow. These clauses should be regularly updated and cover topics such as the permitted use of content created in accordance with the agreement, privacy, the disclosure of sponsored content, and brand obligations.
At a minimum, all contracts and agreements should cover and address:
The correct parties;
The scope of work;
Payment terms;
Services to be performed and deliverables to be produced;
Permitted use of content;
Compliance with relevant regulations, codes and laws;
Exclusivity;
Third-party commercial agreements that may impact the parties;
Intellectual property;
Warranties and indemnities;
Confidentiality;
Insurance requirements; and
Tax requirements.
3. Monitor Social Media Activity
Agencies should monitor their clients' social media accounts to ensure they are adhering to established policies and avoiding any potentially harmful activities that may dissolve trust built with audiences. By keeping a close eye on their online presence, agencies can identify and mitigate any potential legal issues before they escalate by:
Using social media monitoring tools: Leverage tools and software that track clients' activity and mentions on various platforms.
Establishing a reporting system: Encourage clients to report any concerning content, messages, or interactions that may pose legal risks.
Employing administrators to monitor comments and sharing by third parties: Clients may be held liable for defamatory comments posted on their social media accounts and pages.
Review content before posting: Depending on pre-existing content review agreements, implementing a review process for content created by your clients is necessary to ensure it aligns with legal guidelines and internal policies.
4. Protect Your Clients' Intellectual Property
In addition to educating clients about their IP rights, agencies can take proactive steps to protect their clients' IP, including by registering trademarks for their clients' names, logos, and catchphrases. Additionally, to protect a clients’ brand image, agencies should monitor for potential infringement and take appropriate action to address any unauthorised use. This can be done by taking advantage of existing tools provided by social media platforms and consulting with a social media lawyer to develop a plan for addressing infringement, including by sending cease and desist letters, filing takedown notices, and commencing legal action.
5. Seek Legal Advice When Needed
As the global influencer marketing sector continues to evolve, so too have the laws and regulations concerning the use of social media for commercial purposes. In a market where a brand or influencer’s reputation and image is currency, it is more imperative than ever that agencies partner with specialised social media lawyers to ensure their clients’ best interests are protected, allowing them to confidently grow their audience and influence. Social media lawyers work closely with agencies to create custom-tailored strategies to prevent legal disputes, including:
Providing updated guidance on compliance with industry and legal codes (ASIC, ACCC, ATO, AiMCO and Ad Standards);
Identifying potential legal risk before they escalate;
Drafting bespoke employment, contractor or other agreements; and
Providing pre-publication advice to protect against defamation claims, IP infringement and regulatory breaches.
In the rapidly developing social media market, talent and marketing agencies must be vigilant in protecting their clients from the issues discussed above. By educating their clients, ensuring all contracts are drafted to an adequate standard, monitoring clients' online activities, protecting IP rights and seeking legal advice when necessary, agencies can help safeguard their clients' online presence and reputation. Taking a protective approach to legal and reputations risk management on social media will not only protect clients, but also maximise an agency’s own success as they establish themselves as a true partner to their clients.
If you would like to explore a partnership with a specialised team of social media lawyers, get in touch with BlackBay Lawyers today.
