With the increasing use of social media and the shifting of consumers away from traditional media, brands have had to make changes in their marketing methods and advertising strategies. Influencer agreements, which are a new form of legal relationship determined by using the influence of influencers on their audiences, are the most obvious tool for the change in the marketing methods and advertising strategies of brands.
An influencer agreement can be defined as “a contract in which the influencer undertakes to promote or market a certain product, service or brand, shares content created or personally created in order to direct their followers to the relevant product, service or brand, and uses their influence over their followers in the meantime, and in return, the customer undertakes to pay a certain fee or provide another benefit.”[1]
Although influencer contracts can be made on different subjects, there are a few essential points in almost every type of influencer contract. The first of these is that the contract covers advertising and promotional activities. Since the purpose of influencer contracts is to appeal to the audience that the influencer, who is the party to the contract, has influenced, the content is usually prepared by the influencer. The influencer is obliged to act in accordance with the interests of the customer while producing the content in question. A second point that distinguishes influencer contracts from other contracts is that influencer contracts foresee the use of social media. In fact, the influencer’s influence on his/her audience on social media is the main reason why the brand prefers influencer as an advertising method. The brand’s recognition is ensured by using the relationship that the influencer establishes with his/her followers and is based on trust. Finally, influencer contracts are contracts with consideration, and it is possible to determine a fee or different benefits as consideration.
It should be noted that the influencer and the customer, who are parties to the influencer contracts, have certain rights and obligations arising from the contract. In fact, influencer contracts are contracts that impose debts on both parties.
The customer’s basic contractual obligation is to pay a fee or to ensure the provision of the benefit specified in the contract. The influencer’s basic contractual obligation is to share on social media for promotional purposes. By sharing in accordance with the content, duration and all other similar issues specified in the contract, the influencer fulfills his/her obligation. Another obligation of the influencer is to use his/her own brand value. The influencer advertises through the sense of trust he/she creates in the audience of the brand he/she has built on social media. Since consumers consider the recommendations on the social media accounts of the influencers they trust when they want to buy a product or service, it is essential for the influencer to personally perform the obligation he/she has undertaken under the contract. In this respect, influencer contracts regulate the performance of the personal obligation. Finally, the influencer is obliged to act in accordance with the duty of loyalty and care while fulfilling his/her obligations arising from the contract. Within the scope of the duty of loyalty, the contract may include provisions such as the influencer not promoting a competing product or service during the contract period or doing so with the approval of the customer.[2] However, unless otherwise agreed in the contract, it is accepted that the influencer’s obligation not to compete with the customer will also end upon termination of the contract.
The legal nature of influencer contracts is debatable. However, our opinion is that influencer contracts should be accepted as anonymous contracts. In fact, when the essential elements of the influencer contract (advertisement and promotional activities, the performance of these activities on social media and the influencer using their own brand value while performing the activity in question, and receiving a fee or benefit in return) are taken into consideration, it is easily understood that it is different from typical contracts in the Turkish Code of Obligations and has a sui generis nature.
Finally, it would be useful to touch on the reasons for the termination of influencer contracts. Influencer contracts terminate automatically if the parties duly fulfill the obligations stipulated in the contract or at the end of this period if a period is stipulated in the contract. In addition, the parties to the contract may agree to partially or completely terminate the debt with a discharge agreement. If the performance of the obligation becomes impossible after the establishment of the contract, the debts arising from the contract will terminate. However, if the influencer’s fault caused the performance of the obligation to be impossible, the influencer may be held liable for compensation in accordance with Article 112 of the Turkish Code of Obligations. However, if the performance of the obligation became impossible without the influencer’s fault, the influencer must return what they received from the customer in accordance with the provisions on unjust enrichment and must not demand any fees or other benefits that have not yet been paid.[3]
REFERENCE
Yılmaz, A. Z., & Dindar, A. Y. Influencer Sözleşmesi. Ankara Üniversitesi Hukuk Fakültesi Dergisi, 73(1), 477-534.
Turkish Code of Obligations and Related Legislation
[1] Yılmaz, A. Z., & Dindar, A. Y. Influencer Sözleşmesi. Ankara Üniversitesi Hukuk Fakültesi Dergisi, 73(1), 477-534.
[2] Yılmaz, A. Z., & Dindar, A. Y. Influencer Sözleşmesi. Ankara Üniversitesi Hukuk Fakültesi Dergisi, 73(1), 477-534.
[3] Yılmaz, A. Z., & Dindar, A. Y. Influencer Sözleşmesi. Ankara Üniversitesi Hukuk Fakültesi Dergisi, 73(1), 477-534.