Influencer Agreement in Turkish Law – Attorney Ozan Soylu

SOCIAL MEDIA LAW: INFLUENCER AGREEMENT

An influencer agreement, also known as “influencer marketing” or influencer advertising, is one of the popular terms in social media law. With the evolving world conditions, influencer marketing has become a prominent strategy in modern marketing. This involves individuals with high engagement on social media platforms promoting or marketing a product or service using various advertising techniques. These individuals, who have the potential to influence customers in the virtual world, are commonly referred to as “social media influencers” or simply “influencers”. They utilize their influence on various social media platforms to impact the behaviors of their followers. Through the use of social media influence, a relatively unknown product can easily become popular. However, this practice has both positive aspects and negative implications, which are discussed in academic literature. Influencers often provide insights into their daily lives on social media, creating a sense of authenticity and building unique audiences. These individuals work as social media influencers to facilitate the sales of products or communicate marketing information about products.

WHO IS AN INFLUENCER?

Social media is a new and popular media platform. It includes various social networks such as YouTube, Instagram, Twitter, and TikTok. Influencers engage in promoting and marketing specific products or services through content sharing on these platforms. Influencers generally conduct marketing activities on behalf of advertisers rather than in their own name.

When an influencer presents a product or service to consumers, according to the Turkish Code of Obligations, it does not constitute a binding offer. Instead, it represents an invitation to offer. Typically, influencers create videos that introduce products and later include links to websites where these products are sold. If a consumer is influenced by this content and purchases the product, it generally constitutes a new offer based on the invitation offered by the influencer.

INFLUENCER MARKETING IN ADVERTISING LAW

In Turkish law, there are various legal regulations regarding what constitutes advertising, how it should be conducted, and under what conditions it can be carried out. Due to the persuasive abilities of influencers, lawmakers have also established regulations to protect consumers. If influencers include elements like product placements in their content, they are obligated to disclose such information to consumers and avoid aggressive advertising techniques. When producing content, influencers should avoid misleading statements and provide objective evaluations rather than subjective ones.

INFLUENCER MARKETING AGREEMENTS

Especially, businesses use the power of social media to reach a wider audience, increase sales, and promote their brands. They collaborate with influencers to achieve these objectives. In this context, agreements known as influencer marketing agreements or influencer contracts are drafted. An influencer agreement primarily involves an arrangement between the advertiser and the influential individual (influencer). Additionally, this agreement can also be facilitated through agencies. The primary purpose of such agreements is to market a product, item, or service. Influencers leverage their influence to perform this marketing. Under such an agreement, influencers create content to be published on social media platforms and receive compensation in cash or in kind.

ELEMENTS OF AN INFLUENCER AGREEMENT

Creation of Content

The core element of an influencer agreement is the creation of content. The agreement can specify the content in general or provide specific details. This content involves advertisements produced by the influencer that promote or market a specific product or service. Often, influencers create videos that provide informative and recommendatory comments about a product or service while facing the camera.

Publication of Created Content on Social Media

After the content is prepared, it must be submitted for approval by the advertiser. Once approved, the content must be published on social media platforms. While influencers usually have freedom in terms of the platform and timing, these aspects are often outlined in the agreement. The publication phase is crucial, as it is necessary for the influencer to engage their social media audience and achieve the intended benefits of the agreement.

Compensation for the Influencer

In exchange for their promotional activities, influencers are entitled to compensation. This compensation can be in the form of goods or services, as well as cash. Although monetary payment is common, influencers might also receive products they are promoting instead of money. For example, an influencer could request to receive 10 units of the promoted product instead of monetary compensation.

Mutual Agreement

Both parties need to agree on the essential elements of the agreement. This includes determining the product to be marketed, how the content will be created, and the compensation terms. The agreement can be explicit or implied and does not necessarily require a formal format. However, to avoid potential disputes, it is advisable to have a written agreement in plain language.

PARTIES INVOLVED IN AN INFLUENCER AGREEMENT

While anyone can be a party to an influencer agreement, the common parties involved are:

– Advertiser

– Advertising agency / influencer marketing agency

– Influencer

OBLIGATIONS ARISING FROM THE INFLUENCER AGREEMENT

Upon signing the influencer agreement, both parties have rights and obligations. Influencers have specific responsibilities that arise from this agreement:

Content Creation Obligation

The primary obligation of the influencer agreement is the creation of content. The influencer must personally create this content. However, it’s natural for influencers to receive assistance from third parties during stages such as content organization. As long as confidentiality is not breached, seeking assistance from other individuals is legally acceptable. The overall structure of the content can be defined in the agreement, but influencers are generally free to create content as they see fit.

Delivery and Publication of Content Obligation

The created content must be published by the influencer. The influencer’s ability to engage their audience is crucial at this stage. The goal is to prompt the audience to take action and achieve the intended benefits of the agreement.

Provision of Necessary Tools and Equipment

In many cases, technological tools like phones, cameras, and computers are necessary for content creation, and influencers are responsible for covering these expenses. Specific arrangements should be made in the agreement for cases like studio requirements.

Consideration for Brand Integrity

When preparing and publishing content, influencers must consider the brand’s integrity and ensure that their content creation does not harm the brand’s image.

Timely and Proper Execution of Content Creation

Influencers are obligated to create content in a timely and appropriate manner. Failing to do so would breach the obligation of care.

OBLIGATIONS ARISING FROM THE ADVERTISER IN THE INFLUENCER AGREEMENT

Advertisers also have their set of obligations that arise from the influencer agreement:

Payment to the Influencer

The advertiser is obliged to pay compensation to the influencer for their advertising activities. The amount and type of compensation are agreed upon between the parties. This can be in the form of goods or services, or in cash. The agreed compensation cannot be increased, as it is binding for both parties. However, in cases where circumstances become more challenging, requesting an increase in compensation might be possible.

Providing Materials for Content Creation

For instance, if the influencer is promoting a skincare product, the advertiser is responsible for supplying the influencer with the product.

Reviewing and Notifying the Influencer

The advertiser must review the content created by the influencer and provide feedback if any elements are not in line with the agreement. If inaccurate information is present, the advertiser can request corrections.

REGULATIONS FROM THE GUIDE ON COMMERCIAL ADVERTISEMENTS MADE BY SOCIAL MEDIA INFLUENCERS AND PROMOTIONAL OFFERS

In this guide, it is emphasized that Influencers are required to include the hashtag #advertisement when promoting products. This indication must be openly present in the content, not hidden. In the content, it is legally necessary to use phrases such as #advertisement, #collaboration, #sponsorship, #partnership.

Influencers cannot advertise products or services they have not used. They cannot present gifted products as if they have purchased them themselves.

The most sensitive provisions of the guide pertain to health products. In this context, advertisements presented by doctors, dentists, veterinarians, and other healthcare institutions are prohibited according to the guide. Making statements regarding health products is prohibited.

TERMINATION OF INFLUENCER MARKETING AGREEMENT

An influencer agreement, like other contracts regulated by the law, can terminate under various circumstances.

These include:

Impossibility of Performance

For instance, if an influencer is unable to obtain a visa to travel to a country where content is supposed to be created, rendering them unable to fulfill their obligations, the contract may terminate. Similarly, if the product or service being advertised is withdrawn from the market, the contract may also come to an end.

Death of the Influencer

Loss of Capability by the Influencer

If an influencer loses their followers on social media platforms, such as in cases where their account is hacked, the contract may be terminated.

Contract Termination

The contract can be terminated for justifiable or significant reasons.

Rescission of the Contract

If one of the parties breaches their obligations, the contract can be rescinded. Particularly, if there is a defect, the contract can be rescinded. If the content is created differently from what was stipulated in the contract, we can talk about the existence of a defect. Furthermore, if the lump-sum payment is not sufficient for creating the content, the contract can be rescinded.

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EXAMPLE EXCERPTS FROM THE INFLUENCER CONTRACT DECISIONS

“Following examinations, it has been determined that in the posts made on the Instagram account named ‘…’ owned by the individual, consumers who click on the tagged social media accounts of the mentioned brands are directed to corporate social media accounts where the promotion and marketing of the mentioned goods or services are conducted. However, there is no mention of any advertisement or collaboration in the posts, and thus, hidden advertising for the brands is being carried out…”

“In the appearance of the YouTube channel named ‘…’ owned by the company on the date of 24.02.2023, it has been observed that claims such as ‘Hypoallergenic + Dermatologically Tested’ on the company’s Instagram account and claims of ‘Completely Natural’ have not been substantiated with information and documents related to the proof. Therefore, within the framework of the principles in the 9th article titled ‘Burden of Proof’ of the Regulation on Commercial Advertisements and Unfair Commercial Practices, these claims could not be substantiated. Moreover, the use of the ‘E’ logo along with the expression ‘Available in Pharmacies!’ in the promotions creates the impression that the product is reliable by utilizing the trust perception of consumers towards pharmacies, which is misleading…”

“Regardless of the method, it is prohibited to carry out medical procedures that should be performed by a physician in beauty salons. In this context, it has been evaluated that the investigated entity, which does not operate in the health sector, creates the impression in the subject promotions that it provides services in this field by listing the names of various medical treatment methods that are required to be applied by physicians and are not allowed to be applied in beauty salons, and thus operates in the health sector. However, it has been evaluated that the names of these medical procedures are used to create the impression that the entity offers services in this field and operates in the health sector, even though it does not operate in the health sector and cannot advertise such medical procedures even by authorized individuals, according to the regulations. Therefore…”

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