Consider a business that commissions an influencer to promote their skincare product. The brief refers to improved hydration, but the published video promises to treat eczema and includes a popular song. The marketing team must now address an unapproved medical claim and establish whether the music is licensed for the campaign, while consumers continue sharing the post.

For South African brands, influencer partnerships require careful attention to the claims being made, the rights in the content and the terms governing the relationship. These matters should be settled before publication, while the business can still influence how its products are presented.

Claims and Disclosure

Sections 29 and 41 of the Consumer Protection Act 68 of 2008 prohibit misleading marketing and false or deceptive representations. Section 41 also addresses people acting on a supplier’s behalf. Businesses should therefore establish what an influencer is authorised to say and ensure that statements about product performance accurately reflect the available evidence.

Alongside the statutory requirements, the Advertising Regulatory Board’s (“ARB”) Code of Advertising Practice provides an industry framework for self-regulation. Its substantiation rules require advertisers to hold evidence supporting objectively verifiable claims before publication. Describing a statement as a personal opinion will not necessarily protect an advertiser where consumers understand it as a factual promise.

The ARB’s Social Media Code also requires clear identification of advertising and disclosure where goods or services are provided in exchange for coverage. Payment in cash is therefore not the only consideration. The campaign brief should specify how disclosure will appear, with the business checking the published content as well as the proposed wording.

We have previously examined these disclosure requirements in my colleague, Sarah Suleman’s article on sponsored posts. Brands should incorporate them into their agreements and approval procedures, alongside any marketing restrictions applicable to their sector.

Ownership and Permission to Use Content

An influencer’s video can contain several protected works, including music, photographs and material created by other contributors. Availability online does not establish permission to use that material commercially. The agreement between the brand owner and the influencer should allocate responsibility for obtaining the necessary licences and require evidence that the intended campaign use is covered.

Ownership of commissioned content must be expressly addressed. Under the Copyright Act 98 of 1978, ownership depends on the nature of the work and the parties’ contractual arrangements. The agreement should clearly regulate ownership, editing and reuse, including use in paid advertising, the platforms on which the content may be used and the applicable period of use. Ownership of a video does not, in itself, confer rights to use third-party material incorporated into that video.

Agreements and Brand Protection

Due diligence should extend beyond follower numbers. Reviewing an influencer’s previous content, competing brand relationships and audience engagement can reveal commercial or reputational concerns before the appointment. The business should also identify who will manage the relationship and respond if a post creates a problem.

The ARB Social Media Code requires written contracts with paid influencers. In addition to recording the brief and remuneration, a well-drafted agreement should deal with approval procedures, required disclosures, intellectual property and responsibility for breaches. It should define the circumstances in which the business can require corrections, request removal, suspend activity or terminate the engagement, together with the consequences for payment and continued use of content.

Those provisions need to work in practice. Approval deadlines must allow time for review, and the influencer should know whom to contact before departing from the brief. The parties should agree how complaints will be escalated and who will coordinate the response, particularly where the campaign involves an agency as well as the brand.

KISCH IP’s Commercial Department advises brands, agencies and influencers on campaign agreements, advertising compliance and content licensing. Addressing these matters at the outset helps protect the commercial value of the partnership and reduces the scope for disputes.