Brands often remunerate creators for creating engaging content featuring the brand’s products or services and showing that content to the creator’s audience by uploading it to their social media accounts, thereby promoting those goods and services to an engaged audience. But what happens if the creator no longer has access to their account such that they can place those ads in front of their audience? Will brands still want to work with them, and will they breach their existing contracts if they are no longer able to upload content onto their account?
What’s the risk?
There are many ways that a creator may lose access to their key accounts. News of the possibility of TikTok bans and the ACCC internet sweeps in relation to influencer disclosure of sponsored posts highlight a few of the issues which may ultimately result in the loss of key accounts. For example, an influencer’s failure to disclose sponsored posts would not only likely breach the Australian Consumer Law, but would also likely breach the relevant branded content policies on the key platforms, such as Instagram and TikTok.
Here’s what the Terms of Use currently say in relation to Meta’s right to remove content, disable or terminate an account:
“We can remove any content or information that you share on the Service if we believe that it violates these Terms of Use, our policies (including our Instagram Community Guidelines) or we are permitted or required to do so by law. We can refuse to provide or stop providing all or part of the Service to you (including terminating or disabling your account) immediately to protect our community or services, or if you create risk or legal exposure for us, violate these Terms of Use or our policies (including our Instagram Community Guidelines), if you repeatedly infringe other people's intellectual property rights or where we are permitted or required to do so by law. We can also terminate or change the Service, remove or block content or information shared on our Service or stop providing all or part of the Service if we determine that doing so is reasonably necessary to avoid or mitigate adverse legal or regulatory impacts on us…”
Over on TikTok, their policy in relation to branded content currently states:
“To the extent that your branded content does not comply with these rules, we may remove the content or impose other restrictions.”
Further, the TikTok Terms of Service also currently states:
“We reserve the right, at any time and without prior notice, to remove or disable access to content at our discretion for any reason or no reason. Some of the reasons we may remove or disable access to content may include finding the content objectionable, in violation of these Terms or our Community Guidelines, or otherwise harmful to the Services or our users.”
As you can see from the above, a creator’s continued access to their account, and their ability to retain content uploaded onto the account, depends on their compliance with the relevant platform terms and policies. This is something that should be, for the most part, within a creator’s reasonable control. There may be other times however, such as in the case of a regulatory ban, where a creator’s continued access to, and use of, their account may be outside of their control. Each of these situations should be considered in the context of brand deals.
Once an account has been disabled or terminated by the platform, the creator will often need to go through the on-platform appeal process in an effort to restore the account, which may or may not result in the eventual restoration of the account. The appeal process can take some time, and may result in various breaches to existing contracts in the meantime. It’s important that creators obtain immediate legal advice in relation to their existing contracts at the time, if such an event occurs.
Check your contracts
If a creator is required to upload content to certain accounts as part of their contractual obligations, it’s a good idea to check what the contract says about what happens if the creator loses access to that account, either due to their own fault (such as through a failure to comply with the platform terms and policies) or due to no fault of their own (such as through a regulatory ban or discontinuance of a platform).
There are a number of options that you may wish to work into the contract, such as termination rights flowing from loss of access to key accounts, rights to upload the content to an account on another platform (which may be appropriate if the creator has a similar audience on both platforms and the content is likely to generate similar results on both platforms) or a right to vary fees or influencer benefits if only part of the obligations are able to be performed. Whatever the intention upon the occurrence of such an event, that intention should be reflected in the contract.
Know the platform branded content limitations
Each platform has its own terms and policies, and whilst they are often similar in many ways, there are some key differences. For example, alcoholic beverages, alcohol clubs/subscription services, alcohol-making kits, or alcohol-sponsored events (including alcohol-free or no-alcohol alternatives and soft drinks presented as mixers for alcohol) currently cannot be advertised using branded content on TikTik. On Instagram however, alcohol currently falls into the restricted content category, meaning it can be advertised using branded content subject to some limitations, such as having to comply with all applicable local laws, required or established industry codes, guidelines, licences and approvals, and include age and country targeting criteria consistent with the platform’s targeting guidelines and applicable local laws and be age-gated to the appropriate age based on the country.
It’s important to understand any branded content limitations when negotiating brand deals so that the contractual obligations can reflect the platform limitations. Getting this right up front during the contract drafting and negotiation stage minimises the risk of being unable to perform the obligations, or performing them in breach of the platform terms and policies, and thereby risking the creator’s account being disabled or terminated, as well as the content being removed by the platform. A removal of the content by the platform may also consequently result in a breach of the contract the creator has with the brand, depending on the specific terms of the contract.
It’s important to remember that platform terms and policies may change over time, so it’s a good idea to check the terms and policies regularly, and at least when planning a new branded content campaign.
Seek advice from a professional advisor
If you are unsure of your obligations, or your current risk exposure, it is a good idea to seek advice from a professional advisor with experience in these issues. We can assist with review and advice in relation to existing contracts, drafting and negotiating contracts, and advice in relation to social media platform limitations.
For branded content legal advice, contact us.
Information contained within this blog post is intended to be general information only and is not in any way intended to constitute legal advice. You should not act or rely on any information found in this blog post without obtaining prior advice specific to your circumstances.
