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Legal issues when working with social influencers in travel

If hotel marketers’ inboxes could talk, they would tell you that on any given day they likely receive double-digit numbers of potential collaboration proposals from social influencers. Influencer marketing offers brands the opportunity to increase the reach of their brand story and tap into networks where the influencer commands social clout. In a recent post, we established that influencer marketing has the potential to be an effective channel, but as long as it’s built on a solid multi-channel marketing and conversion-optimized foundation.

So what happens after you’ve said yes to working with a social influencer? Since influencer marketing is a relatively new phenomenon, there has been a lot of uncertainty surrounding what’s ethically and legally sound. Government organizations such as the Federal Trade Commision have since stepped in to help clear the muddied waters with a clearly stated Endorsement Guide that all marketers and influencers must adhere to.

The FTC staff reminds influencers and marketers that influencers who are receiving payment in exchange for their feature of a product should clearly disclose their relationships to brands when promoting or endorsing products through social media. For the FTC, whether the influencer was paid hundred of dollars for a review, or given free room nights, the consumer has a right to know this information in order to evaluate these recommendations fully.

Some of the biggest names in Hollywood were not immune to the FTC’s warning—Sofia Vergara, Heidi Klum and Victoria Beckham were among those who received stern warnings from the government regarding their endorsed posts on social media. A recent article in WWD says that the warning intended to “educate” celebrities and influencers on how to post without violating the FTC endorsement guidelines. In most cases, the images have been pulled from social sharing sites.

Failing to comply to these warnings may result in a civil penalty to the tune of $250,000. The FTC has brought charges against major companies such as Warner Bros., Xbox and Sony, and is making it increasing clear that they are serious about eliminating non-disclosures of paid relationships, false advertising and misleading marketing.

Heidi Klum paid endorsement on Instagram
Image via WWD

Instagram, where brands and influencers are notorious for not clearly stating partnerships, recently announced that in an effort to fully disclose all paid partnerships, they are rolling out a “Paid partnership with” tag on posts and stories. Instagram says this feature “will help creators more clearly communicate to the followers when they are working in partnership with a business.” Mega-influencer Aimee Song (@songofstyle) was one of the first influencers to use this feature in June 2017.

Instagram's first "Paid partnership" designation with songofstyle

While the legal rules may seem daunting to marketers, knowing them helps avoid any legal pitfalls when partnering with influencers. Here are some guidelines to the legal issues that all hospitality marketers should be aware of when working with social influencers:

Why it’s important to have a contract with influencers

Having a formal agreement helps govern the relationship between the influencer and the contractor (in this case, the hotel or the social media agency representing your hotel). An email exchange, though tempting, should never take the place of an official contract.

Having a contract with clearly stated terms and conditions should be considered mandatory—even when monetary compensation is not a part of the exchange. A Google search will deliver hundreds of sample influencer agreements, which are relatively easy to put together. However these contracts should always be reviewed by a legal professional for compliance.

Within the hospitality industry, a common practice is exchanging room nights for social media coverage on an influencer’s digital platforms. To ensure that you are in compliance with the FTC requirements for endorsements, Everywhere Agency, a social media influencer marketing agency, suggests having pre-established guidelines with your contracted influencers. This will help avoid a loss of faith in your brand by consumers and avoid any miscommunication with the contracted influencers. Transparency builds trust.

Hilton Hotels & Resorts has dedicated an entire resource on its global media center website to working with bloggers and social influencers. Here they encourage all bloggers and social influencers to follow all FTC regulations and fully disclose any reduced rates or complimentary stays at a Hilton Hotel when posting sponsored content on social.

Bottom line here, make sure you have a contract with terms and agreements that is agreed upon by both parties before the influencer checks into your hotel.

What should your influencer’s scope of work include?

Media intelligence company Meltwater has a great roundup of the nine most essential elements that all influencer agreements must include, one of which is an established scope of work with concrete and specific deliverables. A standard contract with payment terms, copyrights, and indemnity clauses should always accompany a scope of work.

Are you looking for the influencer to share images on Instagram? Do you also want to include a blog post about the influencer’s stay on their blog? How about an Instagram story feature? These are all items that should be determined in the signed scope of work—you shouldn’t assume the influencer inherently knows what you want or what to deliver. It is important to be as specific as possible to ensure you are getting your desired return on your investment.

For example, if your hotel has agreed to a complimentary two-day stay for an influencer, you should clearly state whether or not social sharing should occur before, during, or after the influencer’s stay. Both parties should be clear on when social activity should begin.

Other items you’ll want to include are delivery formats, rounds of revisions, rights to the work produced, as well as metrics. It’s best to be as crystal clear as possible with the influencer so there are no surprises in the end.

When thinking about editing content and how much editorial input the hotel should demand, remember why you decided to work with the influencer in the first place. It’s because you liked their work. While guidelines are encouraged, let the influencer be creative and true to their strengths and their network. Marriott Hotels has always allowed their influencers a sense of creative independence—and its worked across multiple campaigns involving various influencers!

Who owns the content that is produced?

When it comes to ownership of the content created under the contract, this depends on the terms of the contract. It is important to establish who owns the content created and how it can be used. If exact terms are not included in the contract, then the influencer has the copyright on the content and all rights associated with the copyright according a legal professional at Hashtag Legal. You’ll want to clarify if the influencer is relinquishing all rights to the content created, or if the influencer owns the content and is licensing some of the rights to the client.

Don’t let this be a gray area of the contract. Determine early on how the hotel or agency plans to use the content created to guarantee proper use of the digital assets. You may run into an issue if your hotel uses photography created by the influencer for a paid social media campaign or banner ad if that was not the intended (or agreed upon) use of purpose.

In the end, it all comes down to transparency. The more transparent you are with an influencer you’d like to work with, the better the outcome of the partnership. Likewise, the more transparent hotel brands and influencers are about receiving sponsorship (paid and non-paid), the more likely the intended audience will feel informed.

Nancy Huang

Nancy Huang

Nancy is the Senior Marketing Director at Pegasus and expert in strategic communication, brand development, and content marketing. She is an admitted travel junkie and loves finding amazing hotel deals when booking direct. Contact her at nancy.huang@pegs.com.

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