From likes to check-ins: a legal perspective on influencer marketing in the hotel sector

The perfect partner

Strong social media campaigns are well-targeted and consistent with a brand’s values. Hotel brands seeking visibility and a broad reach similar to OTAs may choose influencers with larger followings. Conversely, hotel brands targeting a niche audience may opt for smaller influencers with relevant audiences. Micro- and nano-influencers supposedly deliver more relatable content, which is particularly important for young consumers. 

Regardless of corporate objectives, all hotels should assess the influencer’s reputation - especially regarding past violations of the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (“CAP Code”). The CAP Code applies to influencers and is enforced by the Advertising Standards Authority (“ASA”), which also maintains a list of non-compliant influencers. 

Effective agreements

Many brands – large and small – simply provide the partnered influencer with a “creative brief”.. Whether collaborating with a social media agency or the influencer directly, it is recommended to have a written agreement in place to protect the hotel brand’s interests.  The key terms to include are set out below.

Scope: Provide clear objectives for the social media campaign so that the influencer can align their content with the hotel’s branding. 

Deliverables: Specific deliverables are typically imperative for traditional marketing contracts. But for influencer marketing, the decision to adopt a prescriptive approach versus a more flexible one depends on the campaign. If a hotel is launching a new menu or showcasing a recent renovation, promotional photos or videos may be specified. Hotels focussed on fostering authenticity and trust with a target market may instead give the influencer more latitude, as long as key performance indicators are met. Nonetheless, it is always standard to specify the social media platform for posting content. More prescriptive agreements may also detail -

• the type of content (e.g. if the platform is Instagram, specify whether content should be a feed post, live broadcast or story); 
• anything that must be included in a post (e.g. whether particular wording must be used in the caption or if a location tag or hashtag is to be used);
• any content restrictions (e.g. no references to competing hotel brands); 
• whether the hotel brand’s approval is needed before posting and how this approval is granted; 
• the number of posts before, during and after the hotel stay; and
• timings for posting (e.g. posting within 24 hours of the stay). 

Compensation: Be transparent about what the influencer will get in return. This can range from discounts to complimentary stays or payment from affiliate link bookings. Also clarify who is paying for flights, meals and activities during the stay. 

Intellectual Property (“IP”): Any agreement or brief should explicitly stipulate –

• the use of the hotel brand’s IP (e.g. will the influencer be granted the right to use the hotel’s trademarks in content created for the marketing campaign?);
• the owner of content created for the marketing campaign (i.e. will it be the hotel brand or the influencer?); 
• the right to repost across the hotel brand’s social media pages (typically, a hotel brand would need the influencer or agency to grant a broad license to the hotel brand in perpetuity); 
• the right to edit content (e.g. the right to shorten videos and add graphics to photos); and 
• the right to reuse content in paid advertising and on the hotel brand’s website. 

Termination rights:  To protect their reputation, hotels must retain the right to end partnerships for non-compliance, legal issues, or reputational risks. Past cases, like Adidas cutting ties with Kanye West, highlight the importance of this right. 

Remedies: Given that an influencer’s actions can be unpredictable, it is particularly important to provide broad and robust indemnification for any liabilities arising from their actions, breaches, or non-compliance with laws. Typically, tailored insurance requirements are also desirable. 

Legal compliance: Establish clear guidance on acceptable content which is compliant with consumer protection laws and the ASA (see below), providing examples of what is and isn’t acceptable. For long-term influencer partnerships, it may also be necessary to stipulate how the influencer behaves generally on all media platforms (whether on the internet, television or in print). Hotel brands may need representations or warranties regarding compliance from the influencer or social media agency.

Posting (properly!)

Hotels and influencers must ensure posts meet UK consumer law and advertising standards. Content with financial incentives or freebies must be clearly labelled “Ad” at the start of posts, stories, and videos. Transparency is key, as today’s social-savvy consumers are quick to spot and criticise hidden ads.  

Go organic

Guests enjoy capturing and sharing moments from hotel stays, creating “user-generated content” (“UGC”) that hotels can leverage for authentic marketing. Many brands encourage this by offering Instagram-friendly gifts and displays, as Airbnb has done with its “host experiences” campaign. However, UGC has legal considerations. While UGC isn’t directly regulated by the CAP Code, hotels must comply with rules on fairness and non-misleading claims when they “adopt” UGC, such as reposting or even liking a user’s post. 

IP rights must also be carefully managed. Copyright may apply to a customer’s photo of a hotel or a blog post about their stay. Hotel brands must therefore obtain explicit permission for the one-off or continued use of customer content, and such permission should be documented. However, brands should be aware that third party IP rights often appear in UGC (e.g. where a customer incorporates background music in their post). Even if the customer provides their permission to repost, they are unlikely to be able to do so on behalf of these third parties. 

UGC may also contain personal data, such as the customer’s name. To comply with GDPR, brands must have a lawful basis to repost and share any UGC containing personal data. Essentially, this requires the hotel brand to obtain their customer’s consent (although this consent can always be withdrawn).