Gary Kibel on Liability and the Legal Side of Influencer Marketing

There is hardly a more important subject than legal compliance in influencer marketing. Brands that are found noncompliant often pay dearly for taking things lightly.

Gary Kibel, partner with the law firm of Davis & Gilbert LLP, who will address legal compliance issues at our first Influencer Marketing Days show in New York, is my guest today.

Question: While the concept is centuries old, influencer marketing became the “buzz word” only a couple of years ago, and advertisers’ interest in it is only getting stronger. What do you think about influencer marketing?

Gary: It is somewhat true that the idea of influencers being used for marketing purposes is not a new concept. The FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising were first published in the 1970s. However, the advent of the Internet, and particularly social media, have given new life to concerns over the use of influencers.

Question: What’s the biggest misconception you’ve seen brands have about influencer marketing?

Gary: Some brands fail to realize that they may be primarily liable for the acts of the influencer. Regulators look to brands to set the ground rules for the influencers and to then monitor compliance. Therefore, the brand may be the one on the hook for inappropriate practices.

Question: What top 3 mistakes should advertisers be aware of as they look into getting their feet wet in/with influencer marketing?

Gary:

1. Ensure you have a written agreement with the influencer governing proper behavior in connection with the campaign.
2. Monitor what the influencers and platforms do. An agreement does not have much value if you don’t enforce its terms.
3. Cut ties with influencers or services or platforms with questionable practices. Again, the brand may become liable.

Question: What is the biggest overlooked influencer marketing opportunity, in your opinion?

Gary: Ensure that you are analyzing the metrics from the campaign and learn from the data. Influencer marketing is not just a branding exercise, but can lead to valuable data that can be later leveraged.

Question: With 2017 just around the corner, what would you recommend for advertisers to consider implementing as soon as Q4 is over (a New Year’s influencer marketing resolution of sorts)?

Gary: Review the disclosure practices of both the influencers you engage and the services on which they post. The platforms may have their own way of labeling comments from influencers. You need to ensure that those disclosures and legally sufficient.

Question: Give us 1 key reason why marketers should attend your Influencer Marketing Days session.

Gary: An ounce of prevention is definitely worth a pound of cure. Brands need to understand the steps they need to take in order to avoid legal issues and make their influencer marketing campaigns a success.

Question: If you were to leave brands with one piece of influencer marketing advice, what would it be?

Gary: Engage a lawyer! Just kidding, but only partly. Don’t rely on what influencers, platforms and others tell you. You need to take control of legal compliance yourself to ensure that you can engage in successful campaigns without controversy.