5 things an influencer should know before promoting a product in Malaysia

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NOTE

- WHO IS MY TARGETED READER? --- INFLUENCERS , AGE: 14-25, DONT KNOW ANY LAW RELATED MATERIAL********

NEVER DONE A SPONSORED CONTRACT OR HAS DONE ONE BUT DOESN’T KNOW HE NEEDS A CONTRACT

We often see the perfect Instagram posts and think that all it takes is to get the right picture .But there are other things to work on especially if they’re doing a sponsored posts. Before they even post it in social medias an influencer must work on the contract with the product owner.

The contract must clearly spells out the relationship between the product owner and an influencer. This includes on what’s expected of each party, and what happens when one side break the terms of the agreement. This would give exposure for an influencer who has never done a sponsored promotion or has done one but doesn’t sign any contract.

If you are thinking of promoting a brand, here’re the 5 essentials a social media influencer needs to know first.

1. There must be an exclusivity clause in the contract

Exclusivity clause is a clause that restricts an influencer from promoting another product of “similar in nature”. This is because you don’t want competition OR you want that influencer to be your official ambassador. For instance if an influencer promotes for Pepsi, they will definitely not want you to promote for Coke. They are of similar in nature: drinks. Companies who wish to have exclusivity clause with their influencer should ensure that this is reflected in the contract, and properly worded. Let’s look at closer examples.

An influencer can’t promote a shampoo brand from Herbal Garden and conditioner from Sunsmooth. Both the products fall under the same nature which is hair care related products. Sure, shampoo and conditioner aren’t the same, but it’s similar enough to cater for hair.

 An influencer can promote lipstick from Silky Lady and a perfume from Versahce. Both the products do not fall under the same category (lipstick is a makeup and perfume is toiletries). So this means that the exclusivity clause does not apply.

This scenario can be seen in Miliyasutra Industries Sdn Bhd v Vanidah Imran [2018] case. In this case, plaintiff, Vanidah Imran, was a prominent actress who had a contract with defendant, Miliyasutra, to promote their line of cosmetic and skincare products on her Instagram. 

This case was brought to court because there was an unpaid sum due from the contract. Miliyasutra refused to pay the unpaid sum to Vanidah as she had breached the contract by promoting a competitor’s brand, L’Oréal. This is when Vanidah decided to promote hair products from L’Oréal  at the same time. Miliyasutra acted in such way as they pointed out that there was an exclusivity clause in the contract clearly stating that she is not allowed to promote any other third-party products. Specifically products which are “similar in nature” with their products.

Apparently, court then found that Vanidah Imran did not breach her contract by promoting L’Oréal products at the same time. This is mainly because Miliyasutra’s products aimed at the cosmetic and beauty line. While L’Oréal aimed with hair care products. 

Therefore, even though there was an exclusivity clause in the contract, it’s not a breach for an influencer to promote a product provided it’s NOT of “similar in nature”.

2. If there is no exclusivity clause, then...

In cases if there is no any exclusivity clause, then an influencer is not restricted to sign a contract from other companies. Make sure there is no conflict of interest with the product that being promoted.

The conflict of interest usually arises when an influencer sign up a contract to promote for both handphone brands, like iPhone and Samsung, at the same time. Basically, these companies focus at the same purpose which is telecommunication (hand phones). In fact, conflict of interest goes beyond than promoting a competators’ products.

This is when an  influencer must maintain a good image to create a good impression of the product that is being promoted. For instance, if an influencer is promoting for Family Healthcare Insurance policy, he can’t be caught with news viral in social medias having few mistresses. Thus, this would certainly doubt the consumers’ choice of buying that insurance policy. To sum it up, an influencer should not do anything that will damage a brand’s image.

3. Pay a closer look at the ownership clause

Once an influencer creates the content for a brand, who owns it? Do the rights to the content revert to the influencer after a certain period?

In order to avoid all these misunderstandings, product owner should include the specific ownership clause that an influencer must meet. 

Oftentimes, a brand may want to reuse the sponsored content for other marketing purposes. So, an influencer must also know whether do the product owner still has an ownership of the photoshoot images and videos after the promotion campaign has ended. The same goes for an influencer who might want to reuse it the photoshoot pictures.

If at all it was stated that an influencer has no right to reuse the picture after the campaign has ended, then it should be brought up for discussion during the contract signing. Thus, the ownership clause thus must be drafted clearly and precisely to ensure both parties acted as per the contract.

Besides that, influencers also must clearly disclose that they don’t have the ownership of the product besides promoting it. They can include verbal or caption such as “sponsored by” or “paid partnership with” to portray it.

4. Penalty would be imposed if either party failed to fulfill the contract

If either party didn’t follow the terms and conditions of the contract, then a penalty fee would be imposed. This could go to the extend of getting the campaign cancelled. 

Therefore, in order to ensure that a promotion campaign runs according to the plan, an influencer should pay a closer look on the

(1)  the duration of the campaign, and

(2) the deadlines an influencer must meet in creating sponsored content for review.

An influencer will have to follow the dates and times to promote the product as stated by the product owner. In the event that an influencer is creating multiple sponsored posts for a brand, product owner should clearly outline the amount of time that’s to elapse between posts. 

An influencer should schedule with the product owner to review/approve a post before posting it in social medias. Product owner must clearly communicate the promotion expectations. So that an influencer can avoid being too vague in describing the product, as this can result in content that doesn’t meet its goals.

5. Equal responsibility in making the promotion a successful one

Depending on how the contract is worded, an influencer actually share equal responsibility to fulfill the promotional activities. For example, an influencer has the contractual obligation to fix the date and time for promotional video shoots. Proper conversation established between the product owner and an influencer serve the interest of the advertisement. 

Some promotion campaign might be “time - sensitive”. For instance, if an influencer initially agreed to promote a clothing line (baju kurung and tudung) for Hari Raya Haji. Then it should be done within the time given by the boutique owner. It would be defeating their purpose if an infleuncer decided to promote it one month after Hari Raya Haji. 

So,if both parties are happy with the experience and results of the promotion campaign, they’re much more likely to work together in the future.

At the end it all depends on the contract …

Depending on the nature of the campaign, the marketing contract need to be tailored accordingly.

When an influencer has a marketing contract, it’s a good idea to sit down with a lawyer. Go through clause by clause of what the contract says. If an influencer does not hire a lawyer, he can always reject it if he’s not happy with the offer given by the product owner. An influencer must remember that their responsibilities doesn’t stops right after the promotion has been posted in social medias. It continues through out the campaign period to reach their targeted audiences.

So, it can said that behind every successful advertisement or promotion campaign is a whole new level of arrangements and terms to reach their targeted market.