Influencers, Instagram and a Pretty Little Problem

Written by Tom Synott | January 31, 2020

Intellectual Property

The rise of the Influencer

The cast of Love Island are used to being in the press for a number of reasons, not least because of the large amounts of money they stand to make from sponsorship deals after leaving the villa. With the latest winner, Amber Gill, reputedly said to have bagged a cool one million pounds after signing a collaboration with the fashion retailer MissPap, this latest iteration of the influencer trend clearly means big business.

With social media followers numbering anywhere from the hundreds of thousands to millions, ‘influencers’ are exactly that: they represent an untapped goldmine for brands seeking to deliver targeted advertising to already interested consumers. Moreover, given that influencers typically use social media platforms such as Instagram to share their content, brands will have a quantifiable metric (in the form of likes, re-shares, click through purchases etc.) by which to measure the impact of their advertising.

The arrangement is mutually beneficial: not only to brands get access to consumers they know are already interested in their goods because of a typical ‘image’ an influencer is associated with, the influencer will often receive free samples of the goods or services they are promoting, in addition to a fee. As an alternative career, influencers have gone from savvy individuals working out of their bedroom to generating whole agencies comprised of influencers on their books.

How the arrangement works

Until relatively recently, formal contracts between brands and influencers were rare but they are now becoming the norm. Such agreements will specify what goods/services the influencer is to promote, how they must do so (e.g. a set number of posts concerning the product or service that they have been engaged to promote).

From a brand’s perspective, they will want to ensure that appropriate due diligence has been carried out on the influencer to limit the risk of any reputational damage done to the brand. They will also want to include appropriate safeguards such as termination rights, confidentiality obligations and appropriate incentives.

Key issues to consider

One of the most important issues to consider in appointing an influencer is also the role they play in advertising goods and services. As such, they fall under the remit of the UK Advertising Standards Authority (ASA). This means that all advertising posts must be clearly marked as such, for instance by captioning a post with “#ad”.

Molly-Mae Hague, the recent runner up of the last series of Love Island, found this out the hard way in a recent ruling given by the ASA. Ms Hague is the brand ambassador for Pretty Little Thing (PLT) and recently posted a picture of herself on Instagram which featured her wearing a PLT coat with the caption “A/W I’m ready”. The ASA upheld a complaint that the post was not identifiable as an advertisement in light of the financial relationship between Molly-Mae and PLT.

This is only the latest in a series of rulings the ASA has given which we have previously reported on. You can read more about this topic here, here and here.

Briffa Comment

Briffa supports both brands and a number of private individuals in the public eye: we has been involved in this rapidly developing area of law since the outset.

We have particular expertise in negotiating influencer agreements, merchandise agreements, licensing deals and overall trade mark strategy. Whether you are an influencer or an established brand, it pays to give these issues serious consideration before embarking on what should be a mutually beneficial relationship.

For more information on how we can assist, please email

Written by Tom Synott

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