You’re a brand that uses social media “influencers” to promote products. But what happens when one of them doesn’t deliver? Can you, the brand, sue influencers for neglecting obligations?
As is the case with all things legal: It depends. Yes, with a rock-solid contract, you’ll likely be able to claw back compensation from under performing influencers. Other times, the law may not be on your side. Let’s discuss.
Influencer Marketing Legal Case Study: Luka Sabbat’s Snap Spectacle Deal
Luka Sabbat is a television actor with 1.4 million Instagram followers. A few months back, PR Consulting — a Snap Inc. public relations partner — inked a $60,000 deal with the “Grown-ish” star to promote Snap Spectacles. But according to PR Consulting, Sabbat failed to fulfill his end of the bargain. Now, PR Consulting is suing the actor to reclaim a $45,000 advance.
Since the case is now a matter for the courts, the central question is: What did the contract say and did Sabbat violate it?
According to PR Consulting, a contract exists that called for:
“Create original content for a minimum of four (4) unique posts: one (1) Instagram Feed post and three (3) Instagram story posts.” The posts in question were supposed to be made during New York Fashion Week as well as fashion shows in Milan or Paris, and Sabbat was additionally expected to pose for photos wearing the Spectacles during the European shows.”
The suit also claims that Sabbat only made two posts and didn’t clear them ahead of time.
For its part, Snap, the social media company, is staying mum and isn’t party to the suit.
Social Media Influencer Law: Theoretical Considerations
If PR Consulting can provide the proverbial receipts and prove that Sabbat failed to follow through on an enforceable contract, the firm will likely win — barring other details we may not know.
But in the future, social media influencer lawsuits that involve free-but-problematic contract templates (typically found online) are sure to arise, and courts will have to consider some abstract questions when it comes to social media law — especially since marketing and promotions isn’t an exact science.
In the future, judges and juries deliberating over social media influencer lawsuits may have to consider more subjective questions like:
- Can brands claw back compensation for under-performing influencers, even if they hit their post targets but don’t garner the desired results?
- Does one’s status (as defined by “follower figures”) automatically render their presence sufficient to satisfy an “influencer” contract?
The reason these types of things may arise in cases that involve template contracts is because template contracts are vague, leaving more room for interpretation and legal trouble.
Social Media Influencer Rules
The Federal Trade Commission, our nation’s consumer watchdog, has already published a wealth of guidelines on what influencers can and cannot do.
In the realm of social media influencers, the main goal is to not manipulate users unfairly. And “not tricking consumers,” is mainly about clear disclosures. An #ad, #paid, or #sponsored hashtag typically does the trick.
That said, anybody who uses influencers or affiliate marketers should consult with an online marketing lawyer to ensure contract suitability. The more custom your terms and contracts, the better protected you are. Moreover, since social media posts don’t care about borders, it’s crucial that brands adhere to not only local, state, and federal regulations, but in many cases, international ones.
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That’s where we come in. Our team of online marketing compliance lawyers helps companies —large and small — stay on the right side of the regulatory wall. The cost of a marketing compliance audit is minimal; the cost of an FTC fine could put you out of business.
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