Beware the Instagram DM
Beware the Instagram DM
Sliding in the DMs has reached a whole new meaning in the influencer world. A simple direct message from a company can mean an offer of hundreds to thousands of dollars for a single endorsement post! Who wouldn’t be eager to jump on that deal? After all, brand endorsements are one of the main ways influencers make money.
But what happens if after you post, you don’t hear back from the company for payment? What happens if you did not post exactly what they had in mind? If you have not signed a contract or negotiated a written agreement, the brand deal may not end up being as beneficial as it sounded. Transactions for endorsements have traditionally been very professional, diligent negotiations that involve outlining clear expectations from both sides of a deal. Yet with the growth of social media giants like Instagram and TikTok, it has become easier for companies to directly reach out to influencers without a middleman present, consequently eliminating the formalities seen in business deals and negotiations, employment contracts, and independent contractor agreements and marking a clear and concerning industry trend. Specifically, the result has been informal agreements reached without the advice or counsel of attorneys, wherein the terms of the agreement are often vague, ambiguous, and found in a hodgepodge of DMs. The safety, security, and reliability of a well-negotiated written contract signed by legally represented parties has been shirked for the convenience of social media.
Oftentimes, a brand will reach out to a creator asking to partner up. The cheery comments and enthusiastic DMs make it difficult to distrust them, leading many users to eagerly agree to the offers by simply sending a quick “yes” via direct message. Influencers, particularly those who are well-established or have a large following, constantly receive Instagram DMs asking for assistance with promotions, offering free products, and extending brand ambassador, influencer, or other employment opportunities, but they are often not specific as to their expectations or methods of payment unless a contract is created. This is not an uncommon occurrence when collaborating through DMs, and although convenient, without an attorney present to negotiate the specifics and expectations from both parties, the likelihood of a party being dissatisfied with the products or services rendered significantly increases.
A formal and executed written agreement provides for clear directives and mutual expectations, reliability on certain beneficial contractual clauses, and security in the event one party breaches the agreement and legal action must be taken. For example, an influencer or independent contractor agreement may outline the design, format, timing, and content of social media posts the influencer is expected to publish. This type of clarity and reliability works to the benefit of both parties, i.e., both the influencer and the company. In the event the company believes the influencer’s post does not conform to the specifications, directives, or instructions agreed to by the parties within the contract, the company may elect to pursue legal action against the influencer for breach of contract. In turn, the influencer can rely on the clear and unambiguous written terms of the agreement to prove that the influencer’s post did, in fact, conform to the same or the influencer can similarly point out certain terms and provisions of the agreement that were breached by the company. With a well-drafted written agreement in place, the foundation for a legal claim, counterclaim, or defense is significantly strengthened.
At a purely procedural level, brand contracts can assist creators in following the Federal Trade Commission’s (“FTC”) guidelines and limit liability. The FTC works to vigilantly regulate endorsements in order to protect consumers from deceptive advertising. They do so by outlining specific guidelines influencers and brands must follow when posting an endorsement, including the requirement that all posts must disclose that they are an ad. To prevent misconduct from influencer ads, it is important for both parties to be aware of which FTC guidelines to follow and how to go about doing so. A fledgling influencer, for example, may be unaware of the specific regulations necessary to follow when posting, putting both parties at risk of legal consequences. The FTC explains that brand contracts can be crucial to “educate influencers about the standards for clearly disclosing material connections and the possible legal ramifications if they don’t.” As such, it is incredibly important to consult an attorney to determine if all instructions and guidelines are clear in a brand contract.
The quick exchange of questions and instructions coupled with emojis on an Instagram DM should no longer suffice as the industry standard of a formal agreement. A company generally has a brand reputation to uphold, which means that providing clear instructions as to what a post should and should not include is crucial to ensure they stay true to their brand identity, mission, and reputation. The same protection applies to the influencer, as they would agree upon what kind of post they are making as well as their compensation thereafter. Oftentimes, the security afforded by a contract is overlooked, leaving many without the resources and coverage to properly fight against an actual or perceived violation of the parties’ understanding and agreement. It is essential for both parties to be clear as to what their agreement entails to ensure they are both content with the deliverables (e.g., the social media post, video, reel, etc.) and the compensation provided.
Although some deals may occur seamlessly, the absence of proper contracts or agreements before a post undoubtedly puts an influencer and a brand’s rights at risk. For more information on the above or to secure legal representation, feel free to contact Johnson | Dalal at (954) 507-4500 and ask to speak to one of our qualified attorneys at no charge. We look forward to answering any questions you may have.
