Tegan Boorman
Transcript
Danielle (Scrunch) (00:10):
All right, Tegan, thank you so much for being here today on the Scrunch Influencer Marketing Show. It's a pleasure to have you because you know, a lot of this show is really talking to brands and creators about their experience with influencer marketing. But as the industry gets a lot more legitimate and, you know, there's so many more players, I think it's really important to have a conversation with you around the legal side of things. So Tegan for dialing in is from Social Law Co. And has graciously offered her time today to chat a little, a bit about the legal side of influencer marketing and some of the things that both brands and creators need to know. But Tegan, as I said, thank you so much for being here. I'd love it. Maybe if you can even just give us a window before we start into how did you actually get into law for social media and influencer marketing? It seems like such a niche.
Tegan Boorman (01:07):
Yeah, it's such a common question and thanks for having me on the show. So basically, I've been a lawyer now for about 14 or 15 years, which means I'm really showing my age. But <laugh>, I was a corporate commercial IP consumer law lawyer for quite a while and worked in various different private practice settings. And then I worked in corporate law for a little while as well in equity capital markets. So I've had quite a varied career. Mm-Hmm. <affirmative> but a lot of my clients in private practice were I had a few clients that were sort of PR agencies. I had lots of retail clients, I had a few travel agencies rewards sort of programs related to travel agencies and travel in general. And a lot of these sort of clients had similar issues around advertising and marketing. And I did sort of start to see over the years influence and marketing becoming more of a thing and collaborations and sponsorships and just businesses working together that were sort of non-competing, but complimentary businesses that were sort of helping each other grow.
(02:13):
And I guess that's sort of where influencer marketing started. And I had quite a few clients as well that I would say probably sort of in the mummy space that were you know, stay-at-home moms that had launched a product or a service and they were growing through influences that way as well. So those were sort of the early, early days when they didn't even really call it influencer marketing. They were just doing shout outs and things like that. So yeah. Yep. I've sort of seen it evolve over the years and I guess after I had kids myself I was looking at, well, you know, if I'm gonna stay in this industry doing this legal work, corporate commercial ip you know, where, where do I really, where am I really passionate in terms of the work that I do? And I sort of started to see this niche unfold as time, time went along.
(02:59):
And I, that's the love work that I love doing the most. So I thought, let's just niche right down into that. And it just grew of practice from there. I already have the clients in the space and it sort of, as I started to put it out there more and build the brand around it, more and more just started to come and it was, you know, when I speak with people now, they sort of say, oh, I was looking for exactly, you, like, that's exactly what I needed. I'm sort of a startup business, or I'm a growing business, or I've got, you know, we're a global brand and we use influencers heavily and it looks like that's exactly what you do. So it yeah, it just sort of become it's own beast, I guess <laugh> from that point.
Danielle (Scrunch) (03:36):
I mean, it's so cool, right? Like I remember you know, when I was in uni, oh my God, 10 plus years ago, let's not admit to exactly how many years <laugh>, but it's true. Influencer marketing wasn't a thing. I didn't learn a thing about social media. This has all kind of just happened fairly, you know, really quickly to be honest. And we've all had to kind of catch up. And I think that that's a lot of, a lot what brands have been doing, kind of crossing their fingers a little bit and kind of going, oh, I think this is the right thing to do, you know, morally let's hope that that translates into the, the legal side of things. So having someone like you that can actually break it down and make sure that brands or agencies or creators are actually doing the right thing in this space, especially now that we're seeing more advertising guidelines come out I think that that's sort of the real turning point for the industry as well as no longer is it completely unregulated. I mean it's unregulated in a few different ways, <laugh> but in terms of how we need to respect advertising and the consumer I think sort of now is, now is amazingly the right time for your business.
Tegan Boorman (04:48):
Yeah. And I mean it's probably partly my fault cuz I've helped write some of those. So
Danielle (Scrunch) (04:52):
<Laugh>. Yeah. Oh, thanks <laugh>. Oh, that's amazing. And, but that's I think that's probably a really important point to maybe underline a little bit. So what do we actually need to think about right now? So if we're a brand or an agency and we are working with influencers mm-hmm. <Affirmative>, how have things changed in the last couple of years? What should we be conscious of when we're yeah. Using influencers in our marketing strategy?
Tegan Boorman (05:18):
Sure. Well, there's quite a few things actually. So the first is probably just thinking about, okay, what are we doing? What's our strategy? And then having, you know, what do we need to know legally in terms to underpin that strategy? So often what we do when we meet with a client is we will sit down and figure out, okay, what's the plan for this campaign? What's our strategy? How are we gonna run it? And then we'll start to sort of pick out the, the legal risks in that and then document agreements to minimize that risk or whether or not we're advising on specific areas of law that they need to be aware of in terms of disclosure of sponsored posts or whether it's, you know, you've recently, recently probably seen in the media around the TGA and updates to the advertising part.
Danielle (Scrunch) (06:01):
You definitely need to talk about Yes,
Tegan Boorman (06:03):
<Laugh>. Yeah. And then also things like ASIC have come out with regulatory guides not regulatory guides, but information statements and, you know, clarifying positions on the law as it is today and how that applies to influence marketing. So we are seeing, I wouldn't say changing laws, I would just say we are seeing regulators confirm their position in relation to existing laws and how that applies to new practices. So when we saw, for example, the updates to the T G A code, we didn't necessarily see a massive shift in the positioning there. We just saw them clarifying that influences are people re that are involved in the marketing or promotion of the, the the brand and the products. So I think that that's an important point that we're not really seeing massive shifts in the law. We're just seeing the regulators put out guidance on how they're gonna approach and apply the existing law to those new practices.
(07:01):
So when you think of it that way, it's not something that's changed all of a sudden or that you need to all of a sudden get advice that you didn't need to before. You did need to before. Yes. It's just clearer now that you do need to mm-hmm. <Affirmative> and that, you know, the importance of doing that. And as the regulators obviously take steps to confirm their reasoning and their position on the different laws and how they'll be applied, you can bet that the next step will be enforcement action. So now's your sort of grace period to start getting your ducks in a row, I guess is the important point there. But I guess short answer to your question would be things around disclosure. Are there any relevant laws or codes that apply to your specific industry or business that you need to be aware of? For example, if you are selling a therapeutic good, you might need to be more across the guidelines there for the marketing and advertising of your products. If you are in the financial space and you're in A F S L licensee, you need to be more aware of that as well. So there's pockets of the different influencer marketing space that you will be more highly regulated than just your average consumer products.
Danielle (Scrunch) (08:09):
Yeah, and I think that's a really important point because when those T G A, well not changes, but the clarification came out, everyone did kind of go into a little bit of a spin. Mm. And I got a little bit confused by that because I remember, so we've done a bunch of work with products that are T G A approved and it had always been, you know, we absolutely cannot say this. It cannot be, you know, a testimonial. It has to just be informative. And so when the T G A guidelines were confirmed and that they did apply for influencers, everyone kind of threw up their arms a little bit and said, oh my God, we're not gonna be able to work. And I was like, oh, I think it's always been like that, you know? That's
Tegan Boorman (08:50):
Right. Yeah. It was a instrument that changed the advertising code itself, but really it didn't significantly change the position in relation to influencers. It really just added in some wording that said influencers are those relevant people that are involved. So that's where that issue around testimonials came in. So whilst it wasn't a new piece of legislation, it didn't significantly change what we already knew. Really.
Danielle (Scrunch) (09:16):
Yeah. And interesting too, cuz I think I think both brands have sort of tried to get away a little bit in the past with utilizing influencers as, you know, just gifting and kind of not treating them like a significant marketing channel or like small businesses. And same with influencers I have, I don't think all of them are aware of the fact that they're operating a business you know, whether it be a hobby or a, you know, up to the, the business level. But that's still industry regulations do apply to them.
Tegan Boorman (09:49):
Yeah. And tax as well is other, another relevant consideration, which I think is often overlooked. So yeah, I'm, I'm sure you're gonna speak to a tax accountant around this stuff as well, but you know, when it moves from being a hobby to a small business, it's important to clarify that and differentiate that once you are have, become a business. Yeah. And make sure like any business you have contracts in place and that you're aware of laws that apply to you, that's the case for every business when they start.
Danielle (Scrunch) (10:16):
Exactly. And that's you know, I'm sure you just talked about having the, the brand come in and create the brief and the contract for the campaign and the influencer. You know, I think it's just as important on the influencer or creator side to get some kind of advice on the contracts that they're committing to and signing as well.
Tegan Boorman (10:34):
Absolutely. And that's something that we do as well. We have clients that are content creators and influencers that often come to us with, we've been proposed this agreement, or we want this, this agent wants to act for us. Can you give us advice on the agency agreement? That's, it's just another side of the coin. Absolutely.
Danielle (Scrunch) (10:50):
Yeah. And that's a really interesting point as well about talent agencies. So, you know, we see influencers kind of move sometimes from agency to agency, you know, understanding what kind of obligations they have before they go into one of those agreements to make sure that if it's not the right fit, they can actually move later on. Mm-Hmm. we've seen a couple where the agency that they've signed a contract with have claimed rights to their content and revenues in perpetuity, which is a giant nightmare to get outta. So making sure that they're really aware about what they're getting into before they sign a contract, I think is really important.
Tegan Boorman (11:26):
Yeah, content rights is a huge one because that's essentially what they're selling. They're creating content and then they're selling rights in that content. So you know, that's very important point for them to understand how that content's gonna be used. Because often if it's, if they're intending, if the brand's intending to use it beyond just a social media post and they're gonna whack it on a big billboard somewhere, or they're gonna put it in a glossy magazine, that's additional content rights that should additionally be provided there ideally if the contract's been drafted properly. And with that would come an additional feat presumably for most influencers. So it's an important point to be aware
Danielle (Scrunch) (12:00):
Of. Yeah, absolutely. And I think that that's, you know, why it's worth having these conversations because I think that, you know, there's varying levels of you know, stage in business journey for an influencer, you know, when they are starting out, sometimes a lot of them are just super happy to receive free product in relation to posts and then as they grow monetary compensation and then as they grow again, often their content is of such high caliber that it is being used more broadly in commercially in marketing campaigns. But I don't think there's a lot of education for influences around how to navigate that journey.
Tegan Boorman (12:37):
Absolutely. Yeah. And I think that's, you know, where agencies can really add a lot of value to those content creators as well once they get to that point.
Danielle (Scrunch) (12:44):
Yeah, exactly. Any gotchas that you see for influencers or creators other than those content licensing options,
Tegan Boorman (12:51):
That's definitely a big one. But another one that I often see, and this probably comes from businesses just not having thought through getting proper contracts or anything or just pulled one offline. I often see for an Australian brand and an Australian influencer, a contract that says that US law applies or that UK law applies, it just, it makes absolutely no sense, but it's
Danielle (Scrunch) (13:14):
Been, it's a template <laugh>
Tegan Boorman (13:15):
Template. It's been pulled offline or it's been taken from a holding company that is, you know, there might be a global business and someone in the head office in New York's given them the agreement to use. And it's just absolutely not relevant for Australia. We need to make sure we're operating to Australian laws for both parties because if something goes wrong and you have to litigate it in New York and you're both here, that's a problem for you. So <laugh> it's becomes quite costly as you can imagine. So, and you know, mostly a lot of the parties aren't aware that there's a different law that applies to them and they think that they're operating under Australian law and they're not. So that's an important point. Just making sure that everything that you think is going to be the case is probably reflected in the agreement is really important or otherwise what's the point in having one.
Danielle (Scrunch) (13:59):
Mm-Hmm. <affirmative> an interesting point about contract templates. I know, you know, as a small business owner myself, you know, you try and get everything kind of templated as much as possible in the beginning and, you know, absolutely recommend doing that via our lawyer, not off downloads, off the internet <laugh>. But do you see any brands that can, I guess, reduce the cost by coming up with, you know, briefing templates, contracts and kind of I guess getting the advice from you getting the legal documentation from you, but then being able to use it again and again in different campaigns? Absolut? Yeah. Or is it a bespoke for every deal you do?
Tegan Boorman (14:35):
So I mean in terms of it is bespoke to the business itself. So every business that I've ever dealt with has done business differently. Even influencer marketing agencies, we act for quite a few of them and none of them do things the same way. So I can't just take the agreement that I did for the last one and provide it to the next one because the way they operate is entirely different. Mm-Hmm. it's, it's, that's why templates I don't believe really work. They work in the context of if they've been drafted specifically for that business's use for those type of campaigns, then there's nothing wrong with that business using that template for the 50 influencers they use on that campaign. Yeah. And they run another campaign that's the same, of course can be used again. So if you, if you can sort of come up with those common scenarios in your business that you need an agreement for, it's a good idea to have a lawyer draft the agreement that reflects exactly that practice. Yeah. And if you always adopt that practice, then you've got that template to use. But, you know, if you're going to have different businesses using the same ones, then they just, they just don't operate the same and that's the benefit of them. Right. They have a point of difference. So it's important to make sure that those templates reflect the actual business that's using them.
Danielle (Scrunch) (15:47):
Yeah. So would you suggest if you are a, a brand or an influencer agency that hasn't gone down this path to potentially sit down and think about all of the ways they interact with other parties in their business and Yeah. Get some, get some legal advice to make sure that they're in line with the most current industry regulations?
Tegan Boorman (16:07):
Yes, absolutely. But also from a, a PR influencer marketing agency perspective, think about where you sit in the, the ecosystem, I guess you've got your client and I mean, we often deal with six players in the, the, the space every time we're dealing with a big campaign. So we've often got the influencer or the content creator, then we've got often their agent. So that would be, you know, your talent manager. Then we would also have the brand that's engaging that particular talent to prepare some content. But then often we also have a PR agency that's sitting on top of that, that particular client who's helping them source the right influencers. So you've got four parties just there, influencer brand, both of their agents. And then in between that you sort of have us as legal advisors and often an accounting firm providing accounting advice mm-hmm. <Affirmative>. So ideally that's what you should be aiming for, for a big campaign to make sure that you have something that's going to be appropriate and enforceable and to the best that it can be for the parties involved. So having both a lawyer and an accountant involved is quite important. As we evolve and we, I'm expecting to see more guidance come out from the ATO any day now, <laugh>,
Danielle (Scrunch) (17:24):
We'll have you back
Tegan Boorman (17:26):
<Laugh> around, you know, all of the accounting aspects that come with these type of campaigns. So it's important to have everyone across that, but generally they're sort of the parties that we see involved. And then there will be contracts that, you know, you can have in place as, as a PR agency, you might have your agreement with your client mm-hmm. <Affirmative> and you, you would have an influencer agreement, but think about whether or not you should be the party to that influencer agreement as, as the PR agency, because ultimately it's your client that needs the benefit of that, and it's your client that's gonna wanna sue that influencer if something goes wrong and vice versa. And you as an agent probably don't wanna be in the middle of that lawsuit, but you are the one that has the agreement with either party. So that's something to think about.
Danielle (Scrunch) (18:13):
That's such a, I think that's such an important point because I know when we used to be an influencer agency, that was a common question for some of the bigger brands mm-hmm. <Affirmative> that that we were the ones taking the liability, not them. Yes. So, and I think that's sometimes why they outsource their campaigns to agencies to, because it is such an unknown space and things are evolving and people are trying to get their head around it. I think that that's why they outsource to try and mitigate some of that risk. But I think to your point, if that's not how it's documented, then that's not how it's going to translate.
Tegan Boorman (18:47):
Yeah. And as a brand, you probably wanna be able to have some sort of recourse against that influencer to get them to take something down if it needs to come down or if there's an issue that they've said something that's, you know, misleading or deceptive about your product that can become a problem for you as a brand. Or if an, if you've got an influencer out there and you've got a T G a therapeutic good, and that influencer is providing a full-blown testimonial, you're gonna wanna get that taste down pretty quickly. Yeah. but you're gonna have to go through your agent potentially because that's who you have an agreement with mm-hmm. And it then becomes this weird three-party situation to try and get something that should be a lot simpler.
Danielle (Scrunch) (19:24):
Yeah. And do you think that there's a point at which this should happen or do you think from the day that you start influencer marketing you should be thinking about your contracts? Should you, are we talking about like only big brands or are we just talking if you are gonna do influencer marketing, you need to sort this out?
Tegan Boorman (19:41):
I think you need to be aware of these things because if, even if you're doing contra deals, you're probably the way that we're moving now, most brands that are heavily using influencers have agreements even for contra deals. Yeah. So if you are being approached as an influencer from a sizable brand to do some campaign work for them, you're probably gonna be presented with a contract and you're gonna need to know basically what you're looking for in that contract. Mm-Hmm. <affirmative> and ideally get advice on it. But if you're not at the stage where you can afford to get that advice, because that advice becomes more expensive than what you're receiving out of the campaign mm-hmm. <Affirmative> at least know what you're looking for. Yeah. So those are some, I guess by coming up to speed with that, and I mean, the Australian influencer marketing councils put out some great guidance on that too through the code of practice. So as a bare minimum, I probably for an influencer jump on there and grab a copy of that and just have a read through so you sort of know what you're looking for at least.
Danielle (Scrunch) (20:32):
Yeah. And I'll link that in the, the show notes as well so that people can get access to that. So have you seen anything go wrong before <laugh> in influencer marketing? And if so, you know, how did you get around solving it for all of the parties involved?
Tegan Boorman (20:50):
We actually don't do litigation, so we are more about getting it right from the front. But you do see things go wrong often. I mean, sometimes we do have people come to us and say particularly influencers, oh, I've been approached to do this other campaign, but I did this other one and I think that I might have, I might be restrained from doing this new one. Can I do this new one? Yeah. and when I look at the agreement, in fact, they either are restrained or they, they're not as restrained as they thought they were. Restraints probably a really common one. And then content usage rights is another one that can really go wrong when a brand will say, but I have my content piece now on an ad. I didn't know it was gonna be on like national television at prime time. I would've charged off for that. But you come back to your agreement and see what it says. If you gave them full blown content, oh, you assigned the rights to them completely and you allowed them to do anything they wanted with it for forever in a day, then they're probably okay to do that. So, <laugh>, it's yeah. Important that you understand what you're signing and then making sure that you, you know, are aware that how it's going to play out from that point.
Danielle (Scrunch) (21:53):
Yeah. So I think it sounds like, you know, if any party is involved in influencer marketing, whether we're talking agency brand, influencer, having those discussions upfront and really understanding what each party wants out of the campaign, and then making sure that there is not a template but something bespoke created for that campaign that's gonna save everyone a lot of heartache down the track.
Tegan Boorman (22:16):
Absolutely. Yep.
Danielle (Scrunch) (22:18):
Amazing. All right. Well, you have been fabulous. Any parting advice for people who are getting into this space? Anything that else that they should be aware of that we might not have covered?
Tegan Boorman (22:28):
I think just making sure that you understand, I guess, who's who in the zoo. So you, you know, who you're dealing with, you know, if you're dealing with you know, a talent manager or if you are dealing with an agency for another brand, and then making sure that you're contracting with the party that you should be contracting with. Making sure you know how they're gonna use those content rights. Making sure if you are in an industry that's more regulated, your contract even though you may be using a template from an agency or something, it's been updated to reflect your industry specific things. Because if you are a therapeutic good, you need additional things in your contract. Mm-Hmm. and same if you, you know, if you're a financial product, you need additional
Danielle (Scrunch) (23:12):
Yeah. Even alcohol as an example, you know?
Tegan Boorman (23:14):
Absolutely. Yeah. So there's certain things or, you know, if you are in the space of you selling children's goods, you probably don't want an influencer who's going to be swearing the whole time. Or, you know, there's, there's certain things that you need to make sure are the right fit and that your agreement reflects that to make sure that it's going to not end up being a PR nightmare for you and actually being <laugh> something that's appropriate for, you know, you achieves the purpose that you want.
Danielle (Scrunch) (23:40):
Perfect. Well, thank you so much for spending some time with us today. I know, you know, coming from this industry, there are so many parties that are now getting involved and, you know, making sure that I think everybody sits down and understands what part they play in the process and who's committing to who and what the outcomes are. I think communication might be the best place to start. And then, you know, making sure you understand your industry regulations and then of course having it, having it drafted by somebody in you know, the correct legal profession is a fantastic advice. So I appreciate that.
Tegan Boorman (24:15):
Yeah. And don't be afraid to ask. I think sometimes as a, an influencer when you're approached by a sizable brand, you think, oh, thank God. Like they've, they've finally recognized me. Yeah, I've finally got this opportunity, but then they're too concerned about jeopardizing the opportunity to ask the important questions. Mm-Hmm. But the fact that you don't ask those important questions can become a bit of a red flag for the brand anyway, because they think, well, I thought we were dealing with a professional here that we should know those things. So, yeah. It's, yeah, it's important to ask the questions if you're not sure, and if you are not confident to ask the questions get advice from somebody else that you can take advice from like a lawyer.
Danielle (Scrunch) (24:52):
Amazing. Well, we will link both the Australian influencer marketing guidelines and your information here, so that if anyone does have anything that comes up, they know exactly where to go.
Tegan Boorman (25:04):
Great.
Danielle (Scrunch) (25:05):
Amazing. We'll, have a fabulous day and thank you for joining us. Thank
Tegan Boorman (25:08):
You. See you later
