Influencer Marketing Legals with Tegan Boorman | Get Fact Up #109
Chris Hogan - Good day world, Chris Hogan coming to you live from MeMedia Studio here at Burleigh Heads for episode 109 of "Get Facted Up". And I have with me Tegan Boorman from Social Law Co. How are you Tegan?
Tegan Boorman - Good, thank you, how are you?
Chris Hogan - Excellent, thanks so much for coming in to the studio. We had a chat a little while ago out and about on the Gold Coast and it was quite interesting. We were talking about influencer marketing and I guess the contractual arrangements that maybe they're not doing.
Tegan Boorman - [Tegan] Yes.
Chris Hogan - Or some of the pitfalls that are happening in influencer marketing at the moment.
Tegan Boorman - Tricks and traps, yep.
Chris Hogan - Yeah, so we did touch on some of the things we need to say around, you know this is sponsored content.
Tegan Boorman - [Tegan] Mhm.
Chris Hogan - Can we just reiterate that again for the audience?
- Yeah, so basically it needs to be apparent and clearly distinguishable as being sponsored content when they're posting it. So that may be they do the #add, or #sponsored, or some other way to actually endorse the fact that it's a commercial arrangement and the reason why they're actually posting it. It doesn't necessarily have to be that every time. In my opinion, risk wise you would be better off to do it because, then it's obviously, absolutely clear that's it's an ad and everyone seems to know if you use #ad it's very clear that it's a paid endorsement. You are better off to do that, however, it's not in every case necessary.
Chris Hogan - Right, so that's a great DIY thing that influence marketers should be doing right now.
Tegan Boorman - Yes.
Chris Hogan - Off ya go.
Tegan Boorman - And a lot of them are doing it. More and more I'm seeing you know the big brands that have started not so great in terms of their disclosure. I'm seeing changes and they're starting to implement some more of the DIY stuff, so that's fantastic to see.
Chris Hogan - Great, so what are the some of the pit falls that are happening beyond, you know like--
Tegan Boorman - Disclosure?
Chris Hogan - Yeah, and why do they need to engage a lawyer?
Tegan Boorman - I guess without a commercial agreement, you don't really know what they terms are between you, and you're leaving it open to a court to determine what the intention of the parties were when they actually entered in to that arrangement. So by having an agreement, you can actually turn your mind to the facts and what you want from the content that are creating and what's expected of the influencer. And for the influencer in return what's expected of them and how that content's going to be used. You really are taking it out the realm of, you know, we think we can use it like this and let's just grab it and run with it to a more commercial approach. And this is become a business now for people. They need to be clearer on what they are paying for and what they can do with it and by having commercial agreement in place, it takes them a long way to actually be able to say, this is what I paid for and this is what I should be able to do.
Chris Hogan - So for example, we might be taking a photo of somebody showing a product and that it's meant just for Instagram alone.
Tegan Boorman - Correct.
Chris Hogan - Maybe their brand goes, oh no we want to use it on all of our packaging or a billboard or something along--
Tegan Boorman - That's right.
Chris Hogan - Those lines. And that's not what the influencer signed up for.
Tegan Boorman - Well that's right because an influencer might have a different fee that they would charge for that. And they might have a you know a package of services that they offer. And it might just be for a one off post that it's a small fee however if you want to use that content and create a huge big campaign around it, then that's an extra fee they could be earning extra money for that. And that may not be what they've considered to be you know what they were doing for that fee. So yeah.
Chris Hogan - I'd say influencers starting out as influencers might be like, open to that, yeah, happy to be--
Tegan Boorman - Absolutely.
Chris Hogan - Anywhere because that helps--
Tegan Boorman - More exposure.
Chris Hogan - Raise their profile right?
Chris Hogan - So where are we seeing, I guess these contracts coming in. Is there as, you know, is it based on followers?
Tegan Boorman - It's a tipping point, it's a risk consideration that needs to be thought through by both the brands that are engaging the influencers and the influencers themselves. So the real legal risk in terms of failing to disclose and what not comes from the A triple C's ability to be able to enforce the Australian Consumer Laws. So under that you need to make sure that you know you're disclosing things properly and as part of that the A triple C have put out guidance and said that they're more likely to investigate things where you know there's widespread detriment or risk of detriment and that these are you know blatant disregard for the legislation and particularly if you keep coming to their attention, it's going to be an issue for you.
Chris Hogan - Sure.
Tegan Boorman - You know it needs to be a risk assessment that the brands and the influencers are making at the time of you know thinking through their campaign as to whether or not we need to go and get an agreement or you know is it sufficient for us just to sort of make sure that we're agreeing on terms. Or is it just a let's just grab it and run with it because we think the risk is low here but the thoughts around disclosure should always be there from the start.
Chris Hogan - Great, and so what are some of the other pit falls that are happening before, during, after influencer engagement?
Tegan Boorman - I guess for fees so there was an example recently in Victoria, where it actually went through the courts whether or not she was entitled to a certain fee. So it was an ongoing sort of arrangement and you know posts were sort of added at her discretion but there was no influencer agreement in place and at a later date she decided to archive a lot of those posts and then go and collect her fee and you know rightly so. The brand said well where's the posts? I can't even see them. I haven't got the value that I thought I was getting by this being on your Instagram page. So you know that's an that's an example of you know a consideration if she had an agreement to say these are the posts. I'm entitled to archive them after this date. You'll pay this fee for individual posts and in that specific situation as well they had agreed to revise the fee halfway through it which overly complicated it as well. Whereas that should have been in writing from X date these posts onwards are you know subject to the higher fee and this is what we expect from it. So it really takes out the uncertainty and the risk of a dispute arising by having those agreed terms and setting out what you're doing for the fee that you're getting.
Chris Hogan - Sure, so people charging fees based on maybe just a post to their wall or newsfeed for argument's sake. Than a story and then maybe getting extra for if that particular piece of content gets a certain amount of engagement. And then are they also discussing the fact that well that was all organic. We want to put a boost budget behind that now.
Tegan Boorman - Uh huh.
Chris Hogan - You know, can we can we discuss that and--
Tegan Boorman - [Tegan] Yeah.
Chris Hogan - And clarify what that is and what that means in terms of dollars and cents. Is that sort of stuff happening too?
Tegan Boorman - I mean how they charge and what they charge for is so dependent on the influencer.
Chris Hogan - Sure.
- So I guess they charge what they can get, right? So the more followers they've got the better the brand alignment is going to depend on what they're going to charge. So they're each free to charge whatever fee they like. What becomes standard market practise, you know they might have a one post fee. They might have a you know a campaign fee. A brand ambassador fee. It can be any number of structuring in terms of how they charge it but yeah if it's the intention to actually sort of expand that campaign beyond the initial thing there should be some sort of mechanism and the agreement to sort of determine what fees if any are adjusted in that situation. And you know what further input the influencer might have.
Chris Hogan - Great, so are brands getting themselves in trouble more than the influencers, like for example, are brands you know sort of you know we'll just use that image on our packaging or on a billboard or something like that. Are they been a little bit sneaky and and pushy here or?
Tegan Boorman - You probably seen in the news recently there's been complaints about various different teeth straightening companies for example. So it is ultimately going to probably fall back more onto the brand. Because like all traditional forms of advertising you know it's where the brand is placing their product and there's an obligation to make sure that you know they're following the self regulated guidelines in that process to make sure that you know they're compliant with all the codes et cetera and in this case you know your clearly distinguishable provisions now and sewed it into the code of ethics. So yeah it is gonna fall mostly back onto the brand. That's not to say that the influencer doesn't have their own exposure and risk in the situation because you know they're a party to it and also the agencies connecting them so that's also you know they can be an accessory to this and it's a whole other landscape for them.
Chris Hogan - Yeah, agencies, I know a couple.
Tegan Boorman - Yeah.
Chris Hogan - I was going to ask about the, I don't know what it was actually.
Tegan Boorman - Lost your train of thought?
Chris Hogan - Yeah I did, sorry it's a really great conversation and oh, unfair contract law. So does that sort of come in to where the brand might be going, hey we want you to do all of this for this.
Tegan Boorman - It's always a consideration whether or not you know those provisions are you know enforceable, absolutely. But it's a commercial deal. So if they've agreed to you know provide the services on that basis, then that's the commercial arrangement that they made.
Chris Hogan - So suck it up princess kind of thing. If you write or sign the contract.
Tegan Boorman - You should be getting legal advice on your contact to start with. But yeah there's always you know mechanisms to protect in certain situations, so yeah.
Chris Hogan - Yeah, okay, well. Where does it go from here? Is there is there more pitfalls that are happening that?
Tegan Boorman - I think there's going to be a little bit of an onslaught of more awareness around you know content rights and usage and you know who owns what piece of content and what can be done with it. Specifically because we're about to see a new code come in in relation to influencer marketing that's going to make this more apparent to everyone involved. So you know influencers who might not have otherwise been aware that how that content can be used or that it can't specifically just be used and you know the influence that brand runs with it and then owns the content. Once that awareness comes in there's probably going to be more disputes that arise I'm expecting. But on top of that it's probably going to be clearer that they need to have an agreement. So I'm expecting this is going to be a bit of a game changer in terms of regulation. In terms of growing the industry up a little bit and in terms of you know turning it more into a transparent business transaction and needing the contract that goes with that.
Chris Hogan - Sure, where does copyright come in? Because a lot of people would say, hey if it's on social media it's free from copyright so I can use it anywhere I like.
Tegan Boorman - Not correct. So you know there's always the ability to share content and the platform's create the mechanism for that so if you're on Facebook and you know, you share a piece of content that's different than saving that content, and then posting it to Instagram for example. That's different and especially if you're passing it off as your own work at that stage.
Chris Hogan - So you citing the resource, you citing the--
Tegan Boorman - That's right, you are citing it because you're actually sharing the piece of content that the owner, hopefully the owner, of that content has posted. If you're sharing it and when you share it you can see that person has posted it, and you're just commenting on you know, what a great piece of content it is or that it's useful that it might be something that your connections might find interesting, it's very clear that that's, you know they're actually citing that that's not their content. When you actually copy that content and you know go and use it to create your logo or whatever, then that's that's a problem.
Chris Hogan - What if a influencer is shooting some content for a particular brand.
- [Tegan] Mhm.
Chris Hogan - And the brand is in shot, and there happens to be another brand like in the background or emblem on the shirt or something like that, that doesn't want to be associated with that brand.
Tegan Boorman - Can be a problem. But I mean they're in a photo and it's difficult because they've created, the owner if the copyright is the person who brings that piece of content to existence. So it might be the photographer's taking the photo. They own the rights in that photo. If you've got an issue with being in that photo. I mean these guys could have a problem with this. Like it's you know--
Chris Hogan - They don't.
Chris Hogan - Livin rock, if you haven't heard of them, livin.org mental health, charity.
- So yeah, I don't think there's much behind that in terms of issues. I mean there are businesses and we have a client for example that is in the business of creating content that uses multiple brands. So it's a, you know, it's a situation where she will have five brands approached her and they're related products. And that they, you know, work well. They will cross promote each other and she will take images and those images are then shared by each of those brands which increases, you know, it cross pollinates their audience and increases their followings.
Chris Hogan - That's why we love collaboration.
Tegan Boorman - That's right. So it's all about collaboration and then you know having the agreements, we did all the agreements for her that underpinned all that to make sure that she could do that and that, you know all the parties are on board with that.
Chris Hogan - That's a very good example when you need to contract.
Tegan Boorman - That's right.
Chris Hogan - Yeah, real real important.
Tegan Boorman - [Tegan] Yeah.
Chris Hogan - Excellent advice Tegan. So how do people stay across what Social Law Co are up to? What's the socials and what's the web address et cetera?
Tegan Boorman - So where we've got a business profile page on LinkedIn. All of the socials, so TikTok, Instagram, Facebook all the usual ones. So it's actually a division of former lawyers so when we spoke last time I mentioned social lawyers, this is a specific sub-brand for that firm that caters specifically to this market. We made the decision that it really needed it. So in branding around it and it's got a very specific audience. So that's the rationale behind the change of the names in that scenario.
Chris Hogan - Cool, so we have no contract with Tegan. So you could use this content. But Tegan has--
Tegan Boorman - Voluntarily.
Chris Hogan - Voluntarily, sat herself down and spoken on camera for MeMedia and for you. So thanks very much for your time Tegan.
Tegan Boorman - That's okay.
Chris Hogan - I really do appreciate it.
Tegan Boorman - No problem.
Chris Hogan - And we gonna share this out across the social. So keep sharing guys. We've got plenty more coming to you from MeMedia Studio. In fact we're ramping up again. We've been a little bit quiet if you've hit our website. But there's actually some excitement in the air so. As it heats up for summer, woo-hoo.
Chris Hogan - Cheers.
Tegan Boorman - Thanks.