So you know how to create epic content, but do you know what the laws in South Africa are around this fairly new industry? I don’t believe in the romanticised idea of the “starving artist”. We’re in a time where creators can thrive financially, but an important and often neglected part of that is knowing what the legal requirements and implications are for content creators.
From the outside, being a social media content creator might seem like a fun freelance career path all about glitz, glamour and creativity without the typical woes of running a business. But this assumption could get you into some serious trouble. Yes, legally speaking, being an influencer means you’re a business and a brand, just like Samsung or Nike. That’s why it’s crucial for content creators to understand they can be held to the same legal standards as any other company out there. To address this gap, Fashion Breed and De Beer Attorneys have teamed up to bring you a basic, easy-to-understand legal guide tailored for every South African influencer (or anyone else feeling content-creator-curious).
So, what’s on the agenda? We’ll give you a quick rundown on intellectual property law, cyberlaw, savvy data protection practices, how to deal with potentially harmful defamation claims, and everything you need to know about contract law. And to top it off, we’ll share some tips for influencers thinking about diving into entrepreneurship! By the time you finish reading this post, you’ll be armed with the knowledge to protect your brand, content, and reputation. Plus, we’ll sprinkle in a few insider tips and tricks to help you navigate this exciting career path smoothly and successfully. Don’t worry, we’ll keep it simple, practical, and easy to grasp. Let’s dive in!
INTELLECTUAL PROPERTY LAW
So, what exactly is intellectual property law? Well, it’s all in the name! This branch of law deals with the creations of the mind and lays down the rules for establishing, controlling, and using ownership of these creations in business. There are mainly four types of intellectual property: trade marks, patents, designs, and copyright. In this guide, we’ll focus on trade marks and copyrights, which are most relevant to content creators.
Let’s start with trade marks. A trade mark is officially defined as a symbol made up of a recognisable sign, design, colour, shape, pattern, phrase, container, domain name, word(s), numeral, expression, or any combination of these. Essentially, a trade mark is what identifies products or services from a specific source and sets them apart from other competing sources. Trade marks are more than just logos or catchy phrases; they represent your brand’s unique identity and reputation. Many content creators may run through their entire career without filing a trade mark application. However, if you use a logo, stage name, handle or brand name on your profile that is unique to you and your content, it may be a good idea to investigate whether you should apply for one. When considering what is protected by trade mark law, it’s also important to consider what is not eligible for trade mark rights in our country. For instance, you cannot file a trade mark for your name if your name is generic and is not associated with a well-known brand, skill or achievement. You are also not able to apply for a generic, inherently deceptive or purely decorative trade mark because every trade mark must have a purpose and reasonable evidence to back up its claim for protection over time. Are you wondering if a logo or name is trademarked? There are a couple of ways to find out: you can do a trademark search or look for the “R” (which stands for registered) symbol in the top right-hand corner of a logo, phrase, or word.
Why are trade mark rights critical to consider in the realm of content creation? Firstly, as a public figure, an influencer’s persona, aesthetic, and stage name are often your most valuable assets. It’d be chaos if every aspiring YouTuber or singer could start calling themselves Mr. Beast or Beyoncé online. By trademarking your logo or name, you gain exclusive rights to use that trade mark in your specific line of business and country, thus protecting your image and business from copycats trying to ride your coattails. As an everyday influencer going by your government name, you may not be able to pursue trade mark rights for your persona a la Beyoncé however should you decide to launch a merchandise or product line under your namesake or perhaps design a distinct logo and incorporate your government name into it, it would improve your chances of acquiring trade mark protection for your name in South Africa. Secondly, being aware of trade mark rights helps you keep your brand unique and distinct and helps to avoid accidentally infringing on another brand or creator’s trade mark. While all trade marks in South Africa enjoy basic protection under Common Law, the most secure way to safeguard your trade mark is through the official trade mark registration process. Trade mark registration protects your brand from infringement and establishes your exclusive rights to its use. Whether it’s a catchy logo or a unique slogan, having a trade mark protects your brand’s uniqueness and presence in the market.
Now, let’s talk about copyright law, which is a bit more of a contentious area of IP law. You’ve probably heard of the term “copyright infringement” on a gossip site when musicians gear up to go to war over song lyrics or beats. But how does it apply to social media content creation? Essentially, copyright law determines who has the right to copy or reproduce creative works. The list of works covered by copyright is extensive, ranging from writings to choreography, photography, music, film, or even a blog post, much like this one. Unlike trade mark rights, copyright doesn’t need to be registered to be enforceable. That’s right, there’s no paperwork and zero fees (except where cinematographic content is concerned)! Once you have published your copyright-eligible material in the public domain, your copyright rights automatically kick in. For instance, if you post an original photograph captured by you on IG, congrats, you officially own copyrighted material! However, on social media, copyright infringement is rampant. Despite many platforms’ terms of service stating that users own the content they upload, many features on these apps can facilitate copyright infringement. Sharing and reposting posts, or dueting content without consent from the original creator can lead to potential infringement. Another example of copyright infringement is using audio on your posts that are not explicitly marked as “royalty free” and has not been used with the consent of the copyright holder (yes, posting that “Day in the Life” reel with an Ariana Grande song serving as background audio is copyright infringement, and Miss Grande has legal grounds to sue you). However, a legal principle called “fair dealings,” exists that provides a narrow loophole for allowing the republication of copyrighted material without consent from the original copyright holder for purposes of providing commentary, criticism, parody, satire, engaging in research, private study, education, review, or news reporting. But it’s a very complicated and subjective area of copyright law. Understanding how to protect your copyright and respecting others’ intellectual property rights is vital to maintaining your content’s integrity and avoiding legal trouble. Protect your content by placing directives in the bio of your page or on your posts stating that you do not consent to the republication of your content without your permission. Explore the features and settings on your favourite social media app to turn off the capability for third parties to share your content on the platform. If someone has stolen your content, start by logging a query with the social media platform concerned and state your case. If the social media platform does not prove to be helpful, contact an attorney to pursue your next steps to get justice.
CONTRACT LAW
While contracts may seem like long and confusing documents reserved solely for attorneys, the truth is that we all engage in micro contracts throughout our everyday lives. An example is ordering your go-to meal at your fave spot – you’re making a deal with the server to bring you what you want to eat, and in return, you agree to pay up once you’re satisfied. There are many types of contracts out there, but let’s chat about a few that matter most to you as a content creator. First up is the independent contractor agreement, or as you may know it in your industry, the influencer marketing contract or sponsorship deal. This contract sets out what work should be executed by someone (that’s you, the influencer) who isn’t an employee of the company (the brand) who is asking for the service. It might seem like a drag to conclude a contract with every brand you work with, but it’s incredibly important. Contracts help you set boundaries, keep your money safe (and on schedule), and ensure you’re legally covered if things go pear-shaped. When negotiating your agreement, make sure to include all the nitty-gritty details – such as a comprehensive brief, what you are obligated to post, how often you are posting, engagement expectations, who owns the content that you’ve created, what the approval process will look like and, most importantly, how – and when you’re getting paid – in writing. As an independent contractor, ensuring that you conclude airtight agreements with your clients is especially important to the safety of your business because, unlike a full-time employee, you cannot rely on most of the labour law remedies available in our national legislation should things go wrong.
Next up is the infamous NDA, or Non-Disclosure Agreement. This contract protects the privacy surrounding a particular person, company, event, product, or service, and sets out legally enforceable consequences should this privacy be placed in breach. While an NDA can function as a standalone contract, you will often find that it has also been incorporated into another type of agreement. This type of agreement could apply to a secret product launch that you’re working on or even the social media login details of a brand that is running a temporary “social media takeover” collaboration campaign with an influencer (and vice-versa for an influencer who is sharing their login details with a brand). Always stick to three key principles when reviewing an NDA – keep it specific, set a reasonable time limit, and stick to the rules like your life depends on it – because legally, it kind of does.
Exclusivity Agreements are contracts, or provisions within a contract that define whether an influencer can work with other brands while producing a campaign for another. Since this kind of sponsorship stands to put a cap on your earning potential and exposure, the contract must be very detailed and explicit about who you cannot work with during this period.
Lastly, let’s touch on the letter of intent. Think of this agreement as a sneak peek before the real deal lands! A letter of intent is entered into before a formal contract has been written. It broadly outlines a brand’s goals to collaborate with an influencer and the general spirit of the campaign on the table. It also identifies all main points of the formal agreement that are yet to be negotiated for inclusion into the finalised brand deal. A letter of intent is not always considered a binding agreement, so consider it the legal version of dipping your toe in the water before diving into the pool.
CYBERLAW & ONLINE DEFAMATION
An unfortunate consequence of the meteoric rise of social media in popularity in recent years has been the exponential increase in cyberbullying incidents. As a content creator with a large following, you may fall prey to this form of harassment and assault far more regularly than the average social media user. Sometimes, blocking or reporting a user is enough to scare them off, but some aggressors will persist with the behaviour, or find more insidious ways to get under your skin. There are many critical and far-reaching harms inflicted by this very serious crime, as it stands to severely affect its victim’s mental and physical well-being while, at times, causing reputational damage that can create financial distress.
While social media companies still have a long way to go in providing effective support and remedies to this problem on their platforms, here are a few legal solutions that may bring victims justice and relief over time. Before we get into it, it is important to note that cyberbullying is a crime, which means that victims have the choice to fight the matter using criminal or civil law principles, or even a combination of the two. Let’s start with criminal law remedies. The first step is to head down to your nearest SAPS office and apply for a protection order. Depending on the nature of the harassment, you also have the option to press criminal charges against your aggressor for crimes of Criminal Defamation and Crimen Injuria (injury to the dignity of a person). It is important to note that cybercrimes against people under the age of 18 are very serious and are addressed under the Child Justice Act. In recent years, South Africa extended this protection by creating a legal framework to prosecute and guard against these specific crimes against all persons, no matter their age. To learn more, check out the Cybercrimes Act.
On the civil side, victims of cyberbullying can approach the Film and Publication Board for assistance in removing from public view any pornographic, harmful or violent content by filing a report on the national FPB website. While the process is slow and incredibly stressful, victims also have the option to approach a civil court to sue their aggressors for their damaging actions. Several outcomes can be achieved by lodging a civil claim for cyberbullying or defamation of character. These remedies range from requesting that the court order the aggressor to stop their harmful actions towards the victim, to requesting that the aggressor issue a public apology and retraction to the victim for their defamatory and harmful statements and behaviour. The third remedy that a victim of cyberbullying may explore is to approach the court to claim financial damages on account of the aggressor’s actions. Defamation and claims of legal damages are often challenging to prove, and notoriously tough to quantify. We advise any victims to speak with an experienced and ethical attorney before deciding to pursue this long and often costly route to justice and redemption. Would you like to read more about this topic? The South African Human Rights Commission has added its voice to the discussion by releasing a comprehensive Social Media Charter that goes in-depth on matters discussed in this section of our post. Check it out here. As a rule of thumb, guard your tongue (and those trigger fingers) closely online. Be kind, and if you don’t have anything nice to say, don’t say anything at all – that’s if you’d like to avoid being served with legal notice.
PRIVACY & DATA PROTECTION
As a content creator, your entire career relies on the internet, which comes with some pretty serious risks. Let’s run down some legal notes that apply to privacy law and content creation and share with you some recommendations on how to keep the data and privacy of you and your followers protected in 2024. Let’s start by discussing the Protection of Personal Information (POPI) Act and how it affects the business of content creation. If you, like Aqeelah, have a bangin’ blog, you can no longer add just anyone to your mailing list. Website owners are only permitted to add the email addresses of those who have actively subscribed to their blog or have made their email addresses publically available to their mailing lists. Just a quick note concerning publically available email addresses – should you add such email addresses to your mailing list, it’s imperative that a functioning “unsubscribe” button is present in each of your emails. Furthermore, should anyone ever unsubscribe from your mailing list, it is your legal duty to permanently stop sending them all promotional emails until they decide to re-subscribe to your mailing list of their own volition. Another major impact of POPIA on content creators concerns influencer lists. These lists contain sensitive contact information for influential people online, and as such, brands and agencies cannot share lists featuring your information without your consent. Lastly, be sure to consult POPIA guidelines whenever analysing any data generated by your following on your accounts. In a nutshell, all interactions with any of your follower’s private data must be direct, justified and consented to.
Moving on, how can you protect your privacy online? Account hijacking is on the rise, that’s why we advise you to regularly update your passwords and activate 2-factor authentication (2-FA) on all essential apps. Keep up-to-date with software updates on your digital devices, and consider investing in a VPN (Virtual Private Network) subscription that can mask your live location online to throw any lurking hackers off your scent. Following Kim Kardashian’s Paris robbery in 2016, there has been a global rise in cyberstalking gangs who track individuals on social media to rob or harm them. How should you protect yourself? Avoid tagging your live location when posting on social media. Instead, wait a few hours until you have left the location before posting any content to avoid being targeted for crimes or harassment. It is also advisable not to share the location of your home or post content featuring identifiable features of your home, gym, office or car on social media to further ensure your safety.
Phew, that’s a wrap on Influencer Law 101! To end off, here are some final legal nuggets from us:
- Always cover your back in your paid posts – include direct terms and indemnity clauses in your bio and captions that release liability from any legal drama that may arise should a product that you have promoted cause any harm to your followers.
- Be upfront about sponsored content – the law says so, and honesty is the best policy. Following the Consumer Protection Act of South Africa (CPA), it is vital that creators always visibly and explicitly mention all paid, sponsored, advertising or gifted content. This rule applies to posts across all social media platforms. Remember that at the bare minimum, the words “Ad”, “Paid Partnership”, or “Sponsored” should clearly appear in the content or caption of each sponsored post, while also making use of built-in components such as the “Paid Partnership” feature on Instagram where possible. While clickbait captions and content make for viral posts, they are often inherently rooted in misleading claims and assertions. Resist the urge to embellish your content with exaggerated claims, and always be truthful with your audience.
- Get contracts with brands sorted early on – it sets the tone for the working relationship and keeps everyone on the same page. If needed, the agreement can always be altered over time to accommodate any changes.
- If contracts aren’t your thing, at least get your terms down in writing via email or text. Incorporate your working boundaries into written correspondence with your clients and ensure that they agree to these terms. If push comes to shove, this virtual correspondence can function as evidence of the agreement and may protect all parties involved from falling prey to a raw deal.
- Running a giveaway? Ensure that you are clear on your responsibilities before you hit the post button. It is best to iron out these details well before the contest or giveaway runs on your page to maintain trust between you and your followers.
- Here’s a very important tip for any aspiring influencers turned entrepreneurs. Launching your own business as an influencer brings its own set of unique challenges and opportunities. While it is a huge benefit that you have a large audience of followers to introduce your brand and concepts to, those extra eyes and exposure make your venture particularly vulnerable to copycats and dupe-hungry drop shippers looking to take advantage of your ideas. What’s our advice? Be proactive and pull a Kardashian-Jenner by investing in trade mark (and patent or design rights if required) protection for your brand and its products before you announce or launch your business. Consider these forward-thinking measures as a kind of legal insurance plan that may help you to better safeguard and defend your business endeavours while paving the way for long-term success.
- We did not delve into the legislation on content creation in South Africa in this post, but for those interested, check out the Advertising Regulatory Board’s (ARB) Social Media Code here, which regulates product and service promotion on social media. Another significant legal framework in the South African social media influencer scene is the Consumer Protection Act. Happy researching!
- To cap off the session, here are three insider tips from the De Beer Attorneys Managing Director, Abduraouph Kamaar on how to become a negotiation pro! 1. Let the other party talk first – knowledge is power. Listen carefully to identify the goals, needs and points of concern that may affect you. If you implement this strategy, you can respond from a more informed and powerful position. 2. Be confident in what you want – if some terms of the agreement don’t sit well with you, don’t be shy to address them! Put forward your request or concerns to the client, but be sure to do it politely and professionally. 3. Never, under any circumstances, ever sign a contract without reading and understanding it first.
And there you have it – you’re all set to navigate the legal jungle of influencer life!
LEGAL DISCLAIMER
The content presented in this blog post is intended to offer general guidance on legal matters within the context of South African law in 2024 and is strictly intended for educational and entertainment purposes. It is not tailored to meet the specific needs of any individual, and we strongly advise seeking qualified and personalised legal counsel to address your particular circumstances. Please be aware that laws are subject to change, and while we make efforts to ensure the accuracy and relevance of the information provided, we cannot guarantee its completeness or freedom from errors. Therefore, neither Fashionbreed (Aqeelah Harron), De Beer Attorneys Inc. nor any of their affiliates, employees, contractors, or associates shall be liable for any consequences arising from the use or reliance on the information presented herein and in any social media posts accompanying this campaign.
