Influencers, bloggers, PR companies, communication agencies and brands create online content to create buzz and increase knowledge around a product or service. But how do you ensure regulatorily compliant content, protect content and make sure you own it? And even if getting attention is the aim, what can be done when the attention is negative or unwanted?
By Calum Murray and Emily Nutall-Wood,
When brands and their agencies use influencers to engage through content, a balance must be struck between maintaining the influencer’s authentic tone and managing the risks and liabilities in that content.
Industry regulators, like the ASA and the CMA, hold brands (and their agents) as primarily responsible for complying with the applicable laws and rules and so division of responsibilities between brand (or agency) and influencer is essential. Contracting to cover who will disclose the source of brand-promoting content and the nature of those platform posts, is key, especially where there is a benefit to the influencer. Regulators seek clarity and transparency for consumers on all such content and those concepts must be the watchwords for brands and their representatives when partnering with influencers.
For content ownership, legally, the first author of an original work owns copyright in it. No legal steps are needed, as copyright arises automatically.
The copyright owner then can prevent third parties copying or sharing that work without consent.
The only exception is where content is created while employed, where the employer owns the content.
Influencers who have been gifted products will not be employees though, so images taken for brand or containing their products are not automatically the brands’. Instead ability to use those images must be settled in brands’ influencer contracts.
Although social media channels exist to allow content sharing, technically a copyright-owner can prevent use of their content or legitimately ask for payment in return for a ‘re-post’. The platforms have a content use licence built into their terms, but not for brands. This works both ways though – brands can enforce their rights if their original content is being used objectionably.
To protect brand clients online, obtaining and enforcing trade mark rights helps. Product names, personal names and social media handles, like ‘Zoella’ or ‘GraceFitUK’, are reputable brands.
It may be possible to prevent third parties from using such trade marks without permission – particularly when mis-use causes confusion or suggests a connection where none exists. While goodwill and reputation of a brand can give rise to unregistered rights, these are difficult to prove, especially for earlier stage businesses. A registration it is therefore recommended.
A common problem faced online now is negativity or trolling. Various methods are available to remove disparaging content, but the appropriate response hinges on the nature of the content and its level of traction. Platforms typically remove content which infringes copyright fairly swiftly; the same goes for trade mark mis-use, unless purely descriptive.
However, for content to be defamatory, it must have been published in the last 12 months, be untrue, and lower the brand in the minds of society.
It also needs to be likely to cause serious harm which, for brands, needs to be financial harm.
Defamatory actions can be slow moving set alongside the fast-paced world of online influencing, and so may not be appropriate.
Suing a perpetrator could also be perceived as overreacting, creating further online backlash. If the content is limited and picking up little traction, more practical responses may be appropriate. However, for harsh and/or distressing comments, criminal and civil action for harassment or malicious communications may ultimately be worth considering.
Calum Murray is a Partner and Emily Nutall-Wood is a Managing Associate at Kemp Little, a London law firm specialising in technology and digital media.