WHAT IS INFLUENCER AGREEMENT? 22 February 2024

WHAT IS INFLUENCER AGREEMENT?

1. Definition and Subject Matter of the Influencer Agreement

In legal literature, influencer agreements are characterized by a contractual arrangement wherein the influencer undertakes, for the duration specified therein, to engage with and subsequently promote products and services on their social media. This promotion is to be executed in formats such as videos, photographs, or stories, and at frequencies agreed upon with the company, such as three posts per month. In consideration of the influencer's performance of these promotional activities, the company undertakes to indemnify the influencer with a certain fee or other specified benefits as mutually agreed upon between the parties. (1)

Therefore, upon examination of the mutual obligations, the influencer commits to promoting a specific product or service via social media platforms with the intent of directing their followers to purchase the relevant product or service. Conversely, the advertiser undertakes to provide the agreed-upon certain fee or other specified benefits in return for the influencer's promotional activities

2. Parties of the Agreement, Establishment, and Elements of the Contract

The agreement is established between the influencer and an individual or entity desiring to market a product or service. The advertiser is defined under Article 4(1)(m) of the Commercial Advertisement and Unfair Commercial Practices as “the natural or legal person who publishes, distributes or otherwise exhibits advertisements prepared with the aim of promoting, increasing sales, or enhancing brand perception for the product or service they produce or market, and which includes representation of their company or brand.”

The agreement is a consensual and bilateral agreement that imposes obligations on both parties. Influencer agreements are not explicitly defined as a distinct contractual type under Turkish Law. Therefore, while not subject to any formal prerequisites, they are typically documented in writing to facilitate clarity and evidentiary proof in practice.

The influencer agreement is characterized by three primary elements: the promotion of a product or service, the execution of such promotion via social media platforms, and the provision of certain fee or other benefits to the influencer

3. Legal Nature of the Influencer Agreement

The influencer agreement is a contractual arrangement not explicitly governed by law, established based on the principle of contractual freedom as outlined in Article 26 of the Turkish Code of Obligations No.6098 ("TCO"), tailored to the specific needs of the parties involved. In legal doctrine, there are perspectives suggesting that the influencer agreement could be categorized as a "performance agreement." However, while sharing certain similarities with performance agreements, it also exhibits distinct characteristics.

1. Examination of the Influencer Agreement in the Context of Work Contracts

According to Article 470 of TCO, in a work contract, the contractor commits to producing a work, whereas the employer agrees to provide a price in return. A work is fundamentally associated with tangible movable and immovable assets. However, it is conceivable to categorize certain intangible deliverables, which are essentially non-material in nature, as works (2). Consequently, the influencer's obligation to produce content can be likened to creating a work. Nonetheless, a distinguishing factor that sets the influencer agreement apart from a typical work contract is the obligation to have a price in a contract of work. In the context of influencer agreements, the advertiser might pledge to provide various benefits rather than strictly price in agreement. Another differentiation is that, in a work contract, the contractor commits to a specific outcome, whereas such an explicit commitment is not necessarily present in influencer agreements.

2. Examination of the Influencer Agreement in the Context of Proxy Contracts

According to Article 502 of TCO, a proxy contract is defined as a contract wherein the agent agrees to perform a specific task or transaction on behalf of the principal. In this context, the agent does not bind themselves to a particular outcome but is obligated to act with due care and diligence in accordance with the terms of the agreement to achieve the intended purpose. Similarly, in influencer agreements, while the influencer commits to actions that benefit the advertiser, they do not provide guarantees regarding specific results. As a result, some legal scholars argue that influencer agreements share similarities with proxy contracts.

REFERENCES

1-Avkovan, S. B. (8-9 Kasım 2018). Influencer Sözleşmeleri . Yargıtay Kararları Işığında Güncel Medeni Hukuk Problemleri Sempozyumu Bildirileri, (s. 84). İstanbul 2019.

2- Eren, F. (2019). Borçlar Hukuku Özel Hükümler. Ankara.