Maclaren Corlett (Lawyers Est. 1873)

Like many people, I rely on my PVR to catch up on shows and frequently binge watch series that I have saved. So, while not totally current, I was particularly interested in a minor plot element of a recent episode of a popular hour-long legal drama. One of the main characters, a lawyer, was meeting with a client who had a new skin cream that was being blamed for causing an acne outbreak in a user and creating enough bad publicity that the client felt that their business was in jeopardy. The lawyer was taken aback to discover that the cause of this sizeable threat to the client’s business was a 16-year-old girl. He was reticent initially to take legal action against a child…. until it was explained to him that she was an “influencer” with a following of 50 million viewers.

Setting aside the creative license taken by the show, as would be expected, it did cause me to make two observations. The first being that, whether we like it or not, it would appear that influencers are now so entrenched as an advertising and marketing tool that they have become mainstream enough to be included in the plot lines of these sorts of shows. Secondly, and on a more serious note, it does raise the issue of the somewhat unique difficulty of dealing with influencers when things go awry, particularly those who are minors. It is always a challenging task to deal with an individual who potentially has huge reach and impact with a large portion of a brand’s demographic but may or may not have the sophistication of many of your other advertising agencies. The potential for PR backlash can be huge. It is even more challenging when that individual is a minor. Do they truly understand the consequences of their actions? Can you really expect to get judicial, and public, support if you hold them to the same standard in business dealings that you would expect from your other suppliers? Can you expect them to totally understand the contractual agreements that they have entered into – even if they have received legal advice and had the agreement signed by a parent or guardian?

The vignette in the episode reminded me of how careful our clients need to be and how clear our drafting of influencer agreements needs to be to minimize the potentially significant fallout that may occur if a situation with an under-age influencer goes south.

There is irony here too that is not lost on me. The government has passed it’s new “M2K” (Marketing to Kids) legislation (awaiting royal assent); legislation that will effectively all but ban any marketing of food and non-alcoholic beverages to kids (who, in earlier versions of the legislation some wanted to re-define as persons under 17!). This will make even more stringent the restrictions on advertising TO children but as of yet, there are no specifically targeted regulations on advertising BY children.