Articles about contracts can be boring (yes, even a contract with an influencer can be boring). It's just law and complicated chatter. We're bringing a new concept to the table. While writing this article, we got in touch with Josef Buryan (CMO at Aktin ↗) who we interviewed about working with influencers.
And this is a man in the right place. Josef has been in the social media business for more than 10 years. He was the head of marketing at Tipli cashback portal and participated in successful online projects at 5DM.cz. He came to Aktin after working at the European headquarters of Meta.
We thus bring two perspectives. Legal, but also practical from the "marketing front" with influencers.
Today's marketing is dominated by social networks and influencers. However, the law is always behind and does not offer a concrete solution to regulate the specific relationship between the company and the influencer.
That's why it's a good idea to think about what you expect from an influencer, and it's a good idea to be clear about how they will be rewarded for their work. There are also many other details to think about. While the law doesn't regulate the type of contract with an influencer, it does lay out the rules for advertising, and you as the commissioner don't want to be held responsible if your influencer breaks those rules.
You might think that the contract is not that important because you agree on everything and the cooperation works perfectly.
But what about when it starts to creak? That's when a contract is needed. Otherwise, it's very difficult to prove what you agreed to verbally or on the phone.
Influencers are traditionally not studied lawyers (although there are certainly exceptions), they are often young people who do not want to read complicated and incomprehensible legal documents.
In addition, most companies build on a positive approach to influencers. Therefore, an influencer contract should ideally be written in a friendly, informal and easy-to-understand language. If it already uses a legal term, it should explain it.
As Josef Buryan of Aktin ↗ says: "We have designed our contracts to be as friendly as possible for the "legal layman", so the contract is concise, to the point and to the point. We conduct communication in a friendly spirit, we tease, we don't want to appear mechanical and generic and we try to establish an individual relationship with the person from the beginning."
An informal style of communication can also be achieved in a contract, a form of referring to the parties as "we" and "you" or even "we" and "you" will help. At the same time, the contract can be written in such a way as to avoid legal terms; explanations of individual articles can be written into the contract.
"The most important part for both parties is the setting of performance and remuneration conditions," says Josef Buryan (Aktin ↗).
In his answer, Josef said the most important thing - the parties must determine:
"However, a contract can definitely help especially with larger campaigns and projects where there is a longer period of time, more complex outputs across social networks (variations of platforms) and for example in the case of rewards consisting of multiple components (e.g. affiliate program, fixed amount, budget, etc.). In this case, a contract helps to navigate the collaboration and assists in planning. The contract also helps in collaborating on developing and selling a joint product with the influencer, which is a big step for both parties," adds Josef Buryan from his experience at Aktin.
Influencers create content that can be works of authorship (videos, photos, texts, etc.).
Therefore, the company needs to license the content that the influencer creates to the extent necessary. It is also important to agree on the possibility of using third parties' works, and the liability if the content is used in an unauthorised way.
You don't want an influencer to download someone else's photo from Google, Photoshop it to include your product, and pass it off as their own work. And you certainly don't want to be in a lawsuit with the creator of the original photo.
An influencer should commit to not damaging your reputation. Sometimes this isn't quite as obvious as it may seem. Think about situations where an influencer would completely knock your product promoting a healthy lifestyle by promoting a fast food chain, an over-sweetened drink, etc. in the very next Instragram post?
Also consider the exclusivity of the collaboration in a specific area so that the influencer doesn't start promoting your biggest competitor at the same time.
Although the parties want to build on friendly cooperation, this does not change the fact that it is a contract and its contents are the obligations of both parties. Consider negotiating liquidated damages as well, as an insurance policy for performance - they can be mutual to keep the contract fair.
The influencer should be aware of the legislation relating to advertising (there is, for example, the Advertising Regulation Act ↗). Even you, as the advertiser, may also be liable for offences committed by the influencer.
It is therefore not a bad idea to remind him of this in the contract and explicitly agree that if he breaks the legal rules and this has negative consequences for you, he will compensate you.
It is important to agree on exactly how the advertisement will be labelled (so that it is not considered hidden, which is an unfair commercial practice). Remember that some products are subject to special rules, be it alcohol, tobacco, medicines, food supplements, etc.
You can even have your own internal rules for cooperation, which will be part of the contract or referred to in the contract.
This is how the rules are set up in Actin: "At the beginning of every collaboration, the partner always has a "Collaboration Guide" - a file created by us with all the information "how to collaborate" containing tips, how collaboration works, etc. After reading it, some will ask additional questions, which the manager will specify, usually at the very beginning of the cooperation. The guide is updated regularly and is always available to everyone on a shared drive."
Finally, we will allow ourselves one practical view that is completely unrelated to the law. A common question in marketing is: "how to measure what?" That's why we asked Josef that question as well:
"When evaluating influencer campaigns, there are always 2 aspects to consider (let's call them brand and profitability) - for brand we look at metrics like impression, engagement, quality and value of posts and general contribution and added value to our brand. For the profitable one, we look at the "profitability" of the collaboration - traffic to the site, ROI, sales through the partner, etc."