From Villa to Viral - MLP Law

From Villa to Viral

  • Corporate & Commercial Law
  • 17th Jan 2024

In the world of Love Island, where romantic entanglements unfold onscreen, the behind-the-scenes realm of influencer marketing and brand collaborations adds another layer of complexity. Within this article, we explore the dynamics of social media influencers, brand partnerships, and the regulatory landscape. Defining the Influencer Advertising ‘Couple’: Payment and Control Influencer marketing hinges on a […]

By Amelia Denton

MLP Law

In the world of Love Island, where romantic entanglements unfold onscreen, the behind-the-scenes realm of influencer marketing and brand collaborations adds another layer of complexity. Within this article, we explore the dynamics of social media influencers, brand partnerships, and the regulatory landscape.

Defining the Influencer Advertising ‘Couple’: Payment and Control

Influencer marketing hinges on a ‘couple’ dynamic: payment and brand control. For content to be deemed an advertisement and regulated by the Advertising Standards Authority (ASA), both ‘payment’ and ‘control’ must be present.

‘Payment’ encompasses a broad spectrum, including monetary compensation, gifts, experiences, and promises of future payment.

‘Control’ refers to the brand’s influence over the content, including the right to dictate, review, and specify aspects of the influencer’s posts. The Incorporated Society of British Advertisers (ISBA) introduced the Influencer Marketing Code of Conduct in September 2021, establishing standards for compliance among brands, agencies, and influencers. This code serves as a benchmark, ensuring each party takes their regulatory responsibilities seriously.

Just as romantic relationships face scrutiny on Love Island, influencers’ content undergoes examination. Even without brand control, if an influencer is paid, consumer protection legislation enforced by the Competition and Markets Authority (CMA) comes into play. Influencers are required to disclose any form of payment, and the CMA emphasises the need for content to be clearly identifiable as ‘paid-for.’

Breaching the CAP Code: A Love Triangle of Consequences and Resolution

A breach of the CAP Code initiates a ‘love triangle’ involving the ASA, the influencer, and the brand. While informal resolutions are attempted, formal investigations may follow. If a breach is upheld, the content must be altered or removed,  with potential sanctions for non-compliance.

Ownership of Influencer Content: Beyond the Contract

In the influencer relationship with brands, contractual nuances dictate content ownership. Brands often acquire extensive license rights, yet the core ownership remains with the influencer. These contractual narratives unfold with brands granted commercial and non-commercial rights in perpetuity.

The ‘De-Influencer’ Drama: Spreading Love or Negative Vibes?

In light of the cost-of-living crisis and changing consumer behaviour, a new trend is emerging on social media platforms – de-influencing. Brands need to be aware particularly when ‘gifting’ free products and have processes in place to mitigate the significant impact of de-influencing for brands and consumers.

Managing Brand Reputation

Brands approach influencer partnerships with caution, engaging in brand reputation management involving due diligence, agency collaborations, PR strategies, termination rights, and post-termination confidentiality. These measures can help protect them from potential reputational damage.

Conclusion

Finding the right balance between creative collaboration and regulation is crucial. Brands, influencers, and agencies must ensure that the  narratives they create align with industry standards whilst ensuring transparency and authenticity in an era where online influence holds unprecedented power.

If you require assistance with your brand management or collaboration contracts, feel free to contact us at commercial@mlplaw.co.uk or 0161 926 9969.

About the expert

Stephen Attree

Managing Partner

Stephen is the Owner of MLP Law and leads our Commercial, IP and Dispute Resolution teams which provide advice on all aspects of the law relating to mergers, acquisitions, financing, re-structuring, complex commercial contracts, standard trading terms, share options, shareholder and partnership agreements, commercial dispute resolution, joint venture and partnering arrangements, IT and Technology law, Intellectual Property, EU and competition law, Brexit and GDPR.

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