A Wren Says

I watched a video by Olivia Olfactory. It was a brief storytime about her experience with an unnamed brand. She speaks about the work she did to develop videos for a contracted brief, only to later have the brand annul the contract on the grounds of a non-disparagement clause. It turns out that some time ago, Olivia mentioned in a video that the candles from that brand gave her a headache. And with the quick comment, that was grounds to scratch the videos and refuse to pay her for the work she did do.

For some that led them to a deep dive to figure out the offending brand. But for me, I am going to do deep dive on the other side. What is that clause about?

A non-disparagement clause prevents you from making any negative statements, remarks, or representations that could damage the business of the other party. In the case of influencer marketing contracts, this would prevent the influencer from putting out content like anti-hauls, highly critical reviews, and even engaging behaviors that would reflect poorly on the brand.

That all makes sense, but I guess my question is, “Should it be retroactive?”

In this case, Oliva had posted this video before the contract was signed. Prior to drafting the contract, the brand could have and should have done a review of her posted content to ensure there were no disparaging words, even buried deep. And it seems they didn’t. In that case, if it was the company that didn’t do its due diligence, should it have been considered breach of contract?

I think it is tricky game to have non-disparagement clauses this strong for influencers. Part of the appeal of influencer marketing is the authenticity of their content and their relationships with their community. Extremely broad clauses take away some of that honesty, especially if it was content from before the brand ever considered hiring them. 

If we are to continue down this influencer driven content path, brands need to get serious if this the journey they really want to take. If you don’t want authenticity, you want actor, not an influencer. Strategize accordingly.