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Influencer Agreement: From Onboarding to Obligations

As influencer marketing continues to boom in India, businesses and influencers must navigate the legal landscape carefully. To ensure smooth and legally compliant campaigns, a well-drafted influencer agreement is essential. Below is a quick checklist and an overview of the governing authorities and penalties for non-compliance.

INFLUENCER AGREEMENT CHECKLIST

1. Performance & Content Requirements: Clearly define the platforms and timing for content publication.
2. Intellectual Property (IP) Rights: Specify ownership of the content and rights for usage by both parties.
3. Restrictive Covenants: Ensure no association with inappropriate or harmful content.
4. Fake Followers Representation: Include a clause confirming the influencer’s followers are real.
5. Payment Terms: Set clear terms, timelines, and conditions for payment.
6. Content Approval: Ensure the influencer submits content for business approval before posting.
7. Compliance with ASCI Guidelines: Adhere to ASCI’s rules for proper disclosure and ethical practices.
8. Confidentiality: Protect sensitive product or campaign details.
9. Exclusivity: Limit the influencer from promoting competitors during the campaign.
10. Revisions and Reposting Rights: Outline how many revisions a brand can request and whether content can be reused or reposted in the future.
11. Indemnity Clause: Protect the business from legal claims or damages arising from the influencer’s actions or content.
12. Continuity of Persona: Hold influencers accountable for maintaining a consistent and positive public image.
13. Disclosure Language & Placement: Specify how and where disclosures like “#ad” or “#sponsored” should appear (e.g., within the first few lines of the post, not hidden in hashtags).
14. Termination Clause: Include conditions under which either party can terminate the agreement (e.g., breach of terms, reputational damage, or failure to deliver).
15. Dispute Resolution & Jurisdiction: Define how disputes will be resolved (mediation, arbitration, or courts) and the applicable jurisdiction.
16. Morality Clause: Allow the brand to disassociate from the influencer in case of behavior that could damage its reputation (e.g., criminal acts or controversial public conduct).

GOVERNING AUTHORITIES

In India, influencer advertising is regulated by:

• Advertising Standards Council of India (ASCI): Sets ethical guidelines for influencers, focusing on transparency and authenticity in promotions.
• Central Consumer Protection Authority (CCPA): Oversees misleading or deceptive advertising under the Consumer Protection Act, 2019.

PENALTIES FOR NON-COMPLIANCE

• Fines: A fine of up to ₹10,00,000 for misleading or false advertising. Repeated violations could lead to fines of up to ₹50,00,000.
• Bans: Influencers can be banned from endorsing any product for up to 1 year for the first violation, and up to 3 years for repeated violations.

CONCLUSION

Influencer marketing can be a powerful tool for brand growth, but it comes with legal responsibilities that cannot be overlooked. A comprehensive and legally sound influencer agreement is not just a formality—it’s a safeguard for both brands and influencers against regulatory risks, reputational damage, and financial penalties. By adhering to legal requirements and industry best practices, businesses can run effective, transparent, and ethical campaigns that build trust and deliver lasting impact.