Influencer content is no longer about just trying out a new lipstick shade or creating a video about a new pair of jeans. As social media and influencer marketing proliferate in India, contracts between creators and brands become more complex.
Enter lawyers and legal firms.
A whole new cohort of legal firms and lawyers are now representing influencers, agencies managing influencers, brands, and social media platforms to cater to the growing influencer marketing industry in India.
While seasoned influencers generally work with a team of managers and lawyers, legal firms work on retainers with influencer marketing agencies. These agencies spend anywhere between Rs 30 and Rs 40 crore annually to upwards of Rs 200 crore to hire legal help.
Why do influencers need specialised legal help?
Content creation according to actor and influencer Shibani Bedi is now a full blown career that involves legally binding contracts and hence legal help becomes imperative.
“Digital medium is an uncharted playing field and it is an evolving ecosystem. While there are ASCI guidelines for content creators to follow, there are legal rights that become very important when it comes to the transactional aspect of making content and promoting brands. This is where legal counsel becomes important,” she tells Storyboard18.
ASCI is the Advertising Standards Council of India, which was established in 1985 as a self-regulatory, voluntary organisation of the advertising industry in India. In May 2021, it released the final 'Guidelines for Influencer Advertising in Digital Media', to prompt influencers, creators, agencies, and brands to properly label promotional and sponsored content. The aim was to prevent misleading and exploitative campaigns and content. It also launched ASCI. Social, a platform for influencers and creators to learn and become responsible to maintain the trust of audiences and brands.
Rewriting and reading the fine print
Bedi says that influencers like her want to be safe from any trouble that threatens their presence online and it is best for them to turn to agencies that represent them, and have hired legal help to make contracts watertight. “They help us in understanding what we are signing up for and what it is that we should not overlook when we sign a contract,” Bedi adds.
Talking of contracts and rights, Kritika Seth, founding partner, Victoriam Legalis - Advocates and Solicitors, says, alongside advising, negotiating and drafting documentation, content creators need legal help to acclimatise with various IP [Intellectual Property] issues.
Seth, who works with close to 50 influencers and a host of influencer agencies, says their job is to take influencers though their rights and what they are signing, step by step.
“Not many influencers know that providing services does not necessarily mean granting ownership, unless the agreement reads so. Hiring one’s service to create content and owning the content so created are two very different aspects. This is one area that a huge part of the influencer fraternity is now beginning to get accustomed to, along with other content-related concerns where we do the handholding and advising,” Seth tells Storyboard18.
Given the existing trend of boycotts, backlash and ‘cancel culture’, according to Seth, it is important for influencers to understand that they must be liable only to the extent of what they are delivering.
Hence, defining liabilities becomes another important aspect of legal services given to influencers.
Lawyers, influencers and brands are legally bonded
Shifa Merchant, a lifestyle and travel influencer, who goes by the name @sassyshifsays on Instagram works with lawyers to keep her contracts precise.
“Understanding deliverables is very important and you need legal help to put that down in a contract. These days, brands have their own contracts but it is important for content creators to understand what is expected of them and, most importantly, also be certain about compliance,” Merchant says.
ASCI’s guidelines for influencer marketing made legal advice more important for content creators. Before creators put up content online, it goes through thorough checks by the lawyers to safeguard both the influencers’ and the brands’ interest.
“The new ASCI guidelines for influencer advertising in digital media have a very wide ambit and anyone can qualify as an influencer today. This places a very strict onus on the influencers to be extremely careful about what they post,” says Chandrima Mitra, partner, DSK Legal. As advisors, they have started a review process prior to the posts being put up, advising influencers on correct labelling of the posts as per the guidelines, advising on the rectification processes in case there is any issue raised by ASCI with regard to certain posts, and so on.
While lawyers are ensuring that influencers adhere to the guidelines with a content audit, they are also tightening compensation clauses in contracts.
Explaining how a legal contract does more than just specifying compensation, @sassyshifsays’s Merchant says, “Initially the understanding was to pay a certain sum of money for a piece of content, but thanks to legally binding contracts, my lawyers now break up the compensation into the smallest details”.
This includes several components. Compensation depends on various factors like—if the commitment is restricted to creating a video for the brand, or if the brand is making smaller videos out of the content and promoting it across platforms. Or, in cases like Merchant’s, where her child appears in a lot of her content, if the brand uses pictures of her child, that goes into the contract too. “My lawyers help me in leaving no loose end,” she tells us. “This started as a hobby but became a full time career and I needed to make sure there is fair pay at the end of the day.”