Storyboard18 | The rise of the influencer's advocate

Content creation according to actor/influencer Shibani Bedi is now a full blown career that involves legally binding contracts and hence legal help becomes imperative.

“Digital medium is an uncharted playing field and it is an evolving ecosystem. While there are ASCI guidelines for content creators to follow there are legal rights that become very important when it comes to the transactional aspect of making content and promoting brands. This is where legal counsel becomes important,” Bedi tells Storyboard18.

ASCI is the Advertising Standards Council of India, which was established in 1985 as a self-regulatory voluntary organisation of the advertising industry in India. In May 2021, it released the final 'Guidelines For Influencer Advertising In Digital Media', to prompt influencers, creators, agencies and brands to properly label promotional and sponsored content, with the aim to prevent misleading and exploitative campaigns/content. It also launched ASCI.Social, a platform for influencers and creators to learn about how they can be more responsible and maintain the trust of audiences and brands.

Bedi says that influencers like her want to be safe from any trouble that threatens their presence online and it is best for them to turn to agencies that represent them and have hired legal help to make contracts watertight. “They help us in understanding what we are signing up for and what it is that we should not overlook when we sign a contract,” Bedi adds.

Talking of contracts and rights, Kritika Seth, founding partner, Victoriam Legalis - Advocates and Solicitors, says alongside advising, negotiating and drafting documentation, content creators need legal help to acclimatise with various IP issues.

Seth, who works with close to 50 influencers and a host of influencer agencies, says their job is to take influencers step by step through what their rights are and what they are signing.

“Not many influencers know that providing services does not necessarily mean granting ownership, unless the agreement reads so. Hiring one’s service to create content and owning the content so created are two very different aspects. This is one area that a huge part of the influencer fraternity is now beginning to get accustomed to along with other content-related concerns where we do the handholding and advising,” Seth tells Storyboard18.

Given the existing trend of boycotts, backlash and ‘cancel culture’, according to Seth, it is important for influencers to understand that they must be liable only to the extent of what they are delivering.

Hence defining liabilities becomes another important aspect of legal services given to influencers alongside drawing up contracts and advice on compliance with advertising laws.

Shifa Merchant, a lifestyle and travel influencer who goes by the name of 'sassyshifsays' on Instagram works with lawyers to keep her contracts precise.

“Understanding deliverables is very important and you need legal help to put that down in a contract. These days brands have their own contracts but it is important for content creators to understand what is expected of them and most importantly also be certain about compliance,” Merchant says.

ASCI’s introduction of the guidelines for influencer marketing made legal advice all the more important for content creators. Before creators put up content online it goes through thorough checks by the lawyers to safeguard both the influencers’ and brands’ interests.

“The new ASCI Guidelines for influencer advertising in digital media have a very wide ambit and anyone can qualify as an influencer today. This places a very strict onus on the influencers to be extremely careful about what they post,” says Chandrima Mitra, Partner, DSK Legal. As advisors, they have started a review process prior to the posts being put up, advising influencers on correct labelling of the posts, as per the Guidelines, advising on rectification processes in case there is any issue raised by ASCI with regard to certain posts, etc.

While lawyers are ensuring that influencers adhere to ASCI guidelines with content audit, they are also tightening compensation clauses in contracts.

Explaining how a legal contract does more than just specifying compensation, sassyshifsays’s Merchant says, “Initially the understanding was to pay a certain sum of money for a piece of content, but thanks to legally binding contracts my lawyers now break up compensation into the smallest details.”

The payment is broken up into several components. Compensation depends on various factors like if the commitment is restricted to creating a video for the brand or if the brand is making smaller videos out of the content and promoting it across platforms. Or, in cases like Merchant’s where her child appears in a lot of her content, if the brand uses pictures of her child that goes into the contract too. “My lawyers help me in leaving no loose end,” she tells, “This started as a hobby but became a full-time career and I needed to make sure there is fair pay at the end of the day.”