Navigating the Legal Landscape of Influencer Marketing: The Importance of defining your relationship with the influencer

Collaborating with an influencer is not always as easy as it seems and may require you to think outside of the box. The type of agreement you need will be influenced by the relationship between you two. Taking the time to create a comprehensive agreement will set the stage for a successful collaboration. To ensure a smooth process, it's essential to keep in mind key factors when planning to work with an independent worker. Brands tend to work with influencers providing services as independent workers. Therefore, this article will primarily focus on that kind of relationship. Let's dive in and discover the things you need to consider to make this partnership a success.

Is the influencer employed by your company or are they working independently?

It is important to consider whether the influencer is working for your company as an employee or independently, as this will have an effect on the type of agreement that is needed. It is also recommended to be clear and precise about the relationship between your company and the influencer. If the individual is not an employee, then the agreement should reflect this. That is why it is so important to take the time to find out who you are collaborating with and, based on the type of contractual relationship you are looking to build, add any relevant elements to the agreement. This will ensure that you and the influencer understand your role and responsibilities. Taking the time to ensure that the agreement is as comprehensive as possible will ensure that both parties are protected and that the collaboration is successful.

Provide creative and personal freedom to the influencer

If you are looking to collaborate with independent workers, it is essential to treat them as such. Influencers working independently should be treated differently from employees. It is crucial to provide them with creative and personal freedom, allowing them, for example, to choose and determine their own activities and working hours. To prevent a relationship that could be seen as an employment relationship, it is imperative to draft a clear agreement between the two parties. If the relationship is too close to an employment relationship, it may be viewed as false self-employment. This may come with legal implications for the brand. Without an unambiguous agreement, a clear distinction is not always easy; both influencers and those who use them are often unaware of how the relationship can be viewed by the authorities.

As a rule of thumb, the more instructions you give regarding the services to be performed and the more the person is bound to your organization, the more likely it is that an employment relationship exists. To ensure that your relationship with the influencer is as unambiguous as possible, it is important to make sure that the agreement that is established is fair and offers them the autonomy to choose their own activities and working hours. Also, the relationship should also be independent in facts not only on paper. This should allow for a successful collaboration. In the case of false self-employment, the brand or agency may be responsible for paying employer fees and social costs for the influencer.

Registered activity, company, or individual?

Before drafting an agreement with an influencer, it is important to consider if the person has a registered activity as a influencer or a company. If the influencer is acting as an individual without any registered activity, it is essential to be aware of applicable rules and regulations, as you may have additional responsibilities towards the individual. It is important to understand what legal obligations are applicable to you. You may for example have withholding responsibilities or be required to pay social costs. It is important to be fully aware of all the responsibilities before drafting any agreement with an influencer as you may be able, depending on the applicable laws and regulations, to put some of the responsibilities onto the influencer if it is clearly stated in the agreement. It is also important to consider any potential liabilities arising from the agreement. As such, the responsibility of each party should be clearly described in the agreement and preferably regulate topics such as the payment of indirect and direct taxes, reporting to tax authorities, or even social costs.

Mention the use of third parties

Are you using third parties for services directly tied to the partnership with the influencer? If the answer is yes, we recommend you mention this in the agreement. Mentioning third party involvement in the agreement can help with the smooth running of the partnership. It is important for both parties to be aware of who is involved and what their role is. Describing the processes around the partnership will raise the awareness of the parties with regard to who is involved, and what their role is, and enable them to understand their responsibilities.

For example, informing the influencers when you are using a third party in order to enable the payout of their compensation, will enhance awareness and will set their expectations on who will send the payment and when to expect it.

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