TO CONTACT NOW 0 541 485 92 48
INFLUENCER CONTRACTS
In today’s world, where information technologies are advancing at a rapid pace and the internet has become almost everything, commerce, contracts and communication in general have almost completely moved to the electronic environment. Of course, these developments are also common in the advertising industry. The steps taken for corporate advertising have also been moved to an interactive environment. Advertisements have started to appear on digital platforms such as Instagram, Youtube, Facebook, Snapchat, Google, where people spend most of their time. The era has become the era of digital advertising, and this digitality has started to be provided by people who are known as influencers. For example, this is a development in which we expect someone else to tell us about a product that we have seen advertised on television and liked.
As a result of the advertising industry gaining a different and new dimension, the advertising provisions in the current legislation have begun to fall short. Many new concepts have come to the fore. One of them is Influencer Marketing. It is a new marketing method in which advertisers make an agreement with people called phenomena/bloggers/influencers to promote a certain product or service and promote their products or services on social media through these people.
Phenomen/blogger/influencer are the names given to social media users who have a high number of followers (such as 500 thousand, 1 million people) and have the power to influence these followers with their own thoughts and advice. Literally, influencer means a person who influences society and has the power to shape people’s thoughts and behaviors. People called influencers appeal to millions of people by attracting the attention of internet users on certain topics such as beauty, fashion, electronic games, toys, travel on many popular social media platforms.
It should be emphasized that especially since social media influencers share their own experiences, they really experience that product or service. They are also more considered and preferred because they share their true thoughts, good or bad. Therefore, influencers have the ability to direct and influence the purchasing behavior of their followers by creating an environment of great sincerity due to sharing their true ideas with all aspects of their followers. Influencers are now more preferable than celebrities in terms of attracting potential customers to that brand or product.
Influencer contracts bring together many different legislation and legal fields in terms of their characteristics. These contracts are closely related to the Industrial Property Law, the Turkish Commercial Code, the Intellectual and Artistic Works Law, the Turkish Civil Code, and the Personal Data Protection Law.
1. LEGAL NATURE OF THE CONTRACT
INFLUENCER CONTRACTS is a new type of contract that has emerged in the field of contract law.
Influencer contracts, which are generally prudent, unformed, consensual, and appear as a contract that imposes debt on both parties, are contracts that create a business debt. But they differ from service contracts. Because these people work independently and are not in an order-instruction relationship. Although it is similar to the contract of work in that there is no tight bond between the parties, the fee is a mandatory element of the contract of work, but it is not a mandatory element in the influencer contracts. On the other hand, it can be similar to a proxy contract in cases where a result is not guaranteed, only advertising is done, and no commitment is made. However, the situation will be understood from the content of the contract. It should also be noted that the advertisement made by the influencer as a result of the performance of the contract is considered commercial advertisement in accordance with the law on consumer protection. If third parties purchase the product after the advertisement is made, this will be a consumer transaction, and TKHK will find its application area.
LIABILITY OF INFLUENCER
The debt relationship in the general provisions of the Turkish Code of Obligations; It is classified under three headings as “debt relations arising from legal transactions”, “debt relations arising from torts” and “debt relations arising from unjust enrichment”.
While evaluating whether the influencer has a responsibility to the consumer in terms of advertisements on social media, first of all, it should be noted that there will be no contractual liability here. Because there is no contractual relationship between the influencer and the consumer. As a result of the advertisement in question, the consumer enters into a contractual relationship with the seller or the provider, not with the influencer. Therefore, the responsibility that we have to deal with will be tort liability. Influencer is in the position of a third party in terms of the contract between the consumer and the seller or service provider of the product and is not a party to the contract.
TBK m. Pursuant to 49/1, “the person who causes harm to another by a faulty and unlawful act is obliged to compensate for this damage”. Obligations arising from torts arise directly from the law. Liability for tort arises from “contrary to the general rules of conduct” and constitutes the basis of the liability for compensation.
If we are talking about a right other than an absolute right in the determination of illegality, it will be necessary to determine whether that right is protected by a special protection norm. “In order for an act to be qualified as unjust in accordance with the unlawfulness of the conduct, it will be investigated whether the rule in question is a rule of law that has been violated, regardless of whether it is a rule of public law or a rule of private law” . It should be noted that “directing someone to make a contract by deceiving” is also an illegal act. Intentionally causing a wrong idea to be formed or the continuation of a pre-existing wrong idea in order to direct someone to take a legal action is defined as “deception”.
In the deceptive promotion made by the influencer, with the deceptive element in the promotion, the will of the consumer to make or not to make a contract regarding the product or service advertised by deliberately deceiving about the product or service may be impaired. In this case, the consumer who suffers loss as a result of the goods or services purchased due to deceptive promotion will be able to benefit from the provision of Article 36 of the Turkish Code of Obligations. According to this: “If one of the parties has made a contract as a result of the deception of the other, it is not bound by the contract, even if it is not fundamental. The party that made a contract as a result of the deception of a third party is not bound by the contract, if the other party knew or was in a position to cheat at the time the contract was made. It is held at 36/2.
It should also be noted that the provisions of the advertising legislation also aim to protect the consumer. On the basis of these provisions, when consumers decide to buy something; It can be said that it is “free from wrong judgments”, “not guided by misleading information”, “his feelings and thoughts have not been abused in any way” or “not exposed to secret messages without being aware of it”, “to make a conscious decision by making comparisons between products and services”. Therefore, when a consumer who is affected by unlawful advertising and decides to buy a product or benefit from a service suffers for this reason, in case of a loss, it can be accepted that there is an illegality and compensation for this damage can be demanded from the influencer.
Damage Element damage is defined as “the difference between the decrease in the assets of the person without the consent of the person, the situation in which the assets would be found if the unlawful act had not occurred, and the situation in which the assets were found after the unlawful act occurred”. Influencers sometimes mention that their posts are advertisements and sometimes they may not. If there is an element of deception in the advertisement; If the consumer has purchased the product or benefited from the service in line with this sharing, but has not benefited from the product or service as mentioned, or if the features claimed by the influencer while promoting are not found, it can be said that the consumer has an actual loss. Actual loss is an actual decrease in the asset’s assets or an actual increase in its liabilities. In the event that the consumer cannot benefit from the product or service at all, the price paid for this product or service may be considered as actual damage.
Fault Element A person who causes harm to another person by wrongful act will be liable only if he is at fault as a rule. Fault is to want the unlawful result (caste) or not to use one’s will sufficiently to avoid the unlawful act even though he did not want this result (negligence). As it can be clearly understood from the definition, fault can occur in two ways: “intent and negligence”. Although it is known that the expressions used by the influencer while promoting are deceptive and misleading, if the use of those expressions is still preferred, it will be considered that the influencer is at fault.
Article of the Commercial Advertisement and Unfair Commercial Practices Regulation. Pursuant to the provision of 6/1, “an advertisement must be clearly understood as an advertisement, regardless of its form and the medium in which it is broadcast”. Therefore, in accordance with this Regulation, there is an obligation to advertise the influencer and warn that the content he/she has prepared for the product or service he/she recommends is an “advertisement” (promotion).
The concept of influencer is not defined in the Law on the Protection of the Consumer and the Commercial Advertising Regulation, but we believe that it can be considered in a similar position to “advertising agency” and “media” in terms of responsibility. Therefore, in this sense, the influencer will have to be responsible “like an advertising agency and a medium” for illegal advertisements that he/she prepares and promotes. As a matter of fact, each user opens a “private” account on social media and the right to access and use these accounts belongs to him. In this sense, it would not be wrong to say that the influencer is a “channel organization” and his social media account is a “channel”. For this reason, although the advertiser with whom it is collaborating will prepare the content of the promotional message, the influencer is under the obligation to check whether this content contains any illegality. Failure to do so will result in fault and therefore liability.
Element of Causality Link In order for a loss to arise due to tortious act, there must be an appropriate causal link between the damage and the act. The existence of the appropriate causal link means that the wrongful act can cause such a damage according to the general life experience and the ordinary course of events. The most important issue for the influencer is the degree of effect of the illegal promotion on the followers. Whether there is a causal link with the damage caused by the unlawful promotion of the Influencer as a result of the followers buying the product or benefiting from the service and their expectations were not met, depending on whether the tortious act is effective enough to cause such a loss according to the general life experience and the ordinary course of life. will be determined. Of course, whether the follower of the influencer is affected by the promotion and really benefits from the product or service he bought; It is necessary to separately evaluate whether there is an appropriate causal link between the damages incurred due to the product or service in terms of each concrete event.
III. DETERMINATION AND TIMELINESS OF COMPENSATION
The damage caused as a result of the tortious act must be determined by the judge. The judge will determine the upper limit of the compensation and as a rule, no compensation can be awarded above this. However, in some exceptional cases, it is possible to award compensation above the damage in order to punish the perpetrator due to his unlawful behavior. The damage can be remedied in two ways as compensation in kind or compensation in cash. In the same way, compensation is restoring the assets of the victim by a way other than payment of money, while in cash compensation is the compensation in cash for the decrease in the assets of the victim. The appropriate type of compensation will be determined by the judge.
In tort law, for compensation of damage, the injured party has the obligation to prove the damage and the fault of the person who caused the damage. Therefore, the follower (or consumer) has to prove the damage suffered due to the promotion made by the influencer and that the influencer is at fault. Damage may be related to the price paid for the product or service. There may also be bodily harm caused by the purchase of the product or service. In this case, the consumer “treatment expenses, loss of earnings, losses arising from the decrease or loss of working power, losses arising from the shaking of the economic future” is also stated in TCO art. will be able to request in accordance with the provision 54. The amount of compensation will be determined by the judge according to the circumstances of the concrete case. The statute of limitations is 2 years. The statute of limitations begins from the day when the injured party learns of the damage, the perpetrator of the wrongful act and those responsible for compensation.
So What Should an Influencer Contract Contain?
- The basics: Name, address, email, influencers, contract date, what the contract is about
Content Expectations: How many posts, on which platform, which hashtags to add etc. campaign variables
Pay attention to the mandatory items: #advertising, #sponsorship or #brandpartnership etc.
Content approval: Your approval of the influencer’s content before it is published gerekiyor mu? - Content ownership: Will you reuse influencers’ content for your other marketing purposes? (Reposting their content on your social media, website, case studies, etc.)
Campaign Timeline: Set a clear deadline for the post, or at least a rough time frame so influencers can plan accordingly
Proof of success: Influencers can access certain non-public information such as Instagram story views or blog visits. If you need screenshots or reports of these analytics, specify
Privacy and exclusivity: Many influencers work with multiple brands. If you don’t want to clash with one of your competitors, you can also add a clause to prevent Influencers from working with certain brands for at least a while.
Payment amount, method, terms and conditions: also specify the payment method, information that Influencers must submit before payment, and other terms and conditions. ❑ Provisions for cancellation or poor performance: What will happen to the agreed payment in case of poor performance, late delivery or cancellation?
Signature and date
Stj. Hunting. Elif Nur Akyol
TO CONTACT NOW 0 541 485 92 48