Digital Engagement Agreement - Key Clauses

The influence of social networks in society is undeniable, and as we have seen their use consolidate, we have also seen the growth in the number of digital influencers, professionals who use social networks to promote brands, events, etc.

The records in hiring these professionals have been surpassed throughout the years [1], and in view of this we must be aware of the legal aspects of this not so new profession.

We know that the non-observance of legal precepts, and the lack of specific clauses in the elaboration of a contract can lead to a disagreement that often leads the parties to the place that nobody wants to be: the Court. Thus, we will deal here with contractual provisions that cannot be missing in a digital influence contract.

First, we must keep in mind that the service to be exercised by the contracted party is through a digital platform, using a specific account (or not). This, as well as the specification of the platform, and the tools of the platform (e.g. stories or feed) that are to be used, should be provided in the contract.

Considerations" can include everything that led to the contractual link between the parties (number of followers, relevant influence in a certain industry, etc.).

Regarding execution, we must pay attention to what is beneficial to the client to be represented: will the contractor be able to repost the content created by the influencer? Will the influencer be able to delete the content or "archive" it after a certain period of time? Who should choose the photos, if they are eventually to be used?

Finally, the clause that provides for the possibilities of contract termination must specify whether there will be retention or payment of amounts for content not yet created, because eventually, the contract may be terminated before the end of the delivery of its object.

See that the points above are the essentials of the digital engagement contract, but the other clauses should also be present and more than once reviewed, namely:

Rights and obligations of the parties

Penalty clauses in case of termination or default, as well as indemnification hypotheses

Hypotheses for termination of the contract

Intellectual property and LGPD (if applicable)

Compliance: the parties must comply with all their legal obligations.

No employment relationship

No enticement

Non-competition

Confidentiality

Jurisdiction [2]

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[1] BAPTISTA LUZ ADVOGADOS. Legal Handbook - Digital Influencers. Available at <https://baptistaluz.com.br/institucional/manual-juridico-influenciadores-digitais/> Accessed October 10, 2021.

[2] LOPES, ERICA ALVARENGA. Main Clauses of the Service Contract. Available at <https://ericaalvarenga.com.br/principais-clausulas-do-contrato-de-prestacao-de-servicos/> Accessed on October 11, 2021.