Influencer Agreement (New Zealand)

In New Zealand, influencer marketing is regulated primarily by the Fair Trading Act 1986 (FTA) and the Advertising Standards Authority (ASA) Advertising Standards Code. The FTA prohibits misleading conduct in trade — an influencer who promotes a brand without disclosing that they are being paid to do so may be engaging in misleading conduct because consumers may believe the endorsement is organic rather than commercial. The ASA requires that advertising be clearly identified as advertising, including on social media. This means influencers must disclose their commercial relationship with a brand when publishing sponsored content, whether or not they are paid in cash (gifted products and free travel are also consideration that must be disclosed). Common disclosure methods include hashtags such as #ad, #sponsored, or #gifted, or a clear statement at the start of the content. The disclosure must be prominent and clear — burying a disclosure in a long list of hashtags or using non-standard terms may not be sufficient. The Influencer Agreement should require the influencer to include appropriate disclosures on all sponsored content and should specify the disclosure format.

Under the Copyright Act 1994, the influencer (as the author) is the first owner of copyright in the content they create, including photos, videos, and written posts. The brand does not automatically own the content just because it paid for the campaign. To use the influencer's content beyond the original campaign — for example, in the brand's own marketing materials, website, or paid advertising — the brand needs either an assignment of copyright or a licence. Influencer Agreements typically grant the brand a licence to use the content for a specified period and for specified purposes (e.g., organic social media reposts for 12 months). If the brand wants broader rights — including use in paid advertising, print, or broadcast — it should negotiate and pay for those rights specifically, as influencers often charge a 'usage fee' for commercial rights beyond organic posting. The Influencer Agreement should clearly define the scope of any licence granted to the brand, including the platforms, territories, duration, and permitted uses, to avoid disputes about whether the brand is entitled to use the content in a particular way.

Exclusivity provisions in a New Zealand Influencer Agreement restrict the influencer from working with competing brands for a specified period. Exclusivity terms vary widely depending on the scale of the campaign and the value of the relationship. Category exclusivity (the influencer cannot work with any brand in the same product category) is most common — for example, a beauty brand may require the influencer not to promote other beauty brands for 30–90 days around the campaign. Brand exclusivity (the influencer cannot work with any other brand at all) is rare and commands a significant premium. New Zealand courts will enforce exclusivity restrictions in commercial contracts if they are reasonable in scope and duration, consistent with the principle under the Contract and Commercial Law Act 2017. Overly broad exclusivity clauses — for example, a blanket exclusivity for 12 months covering all commercial activity — may be difficult to enforce as an unreasonable restraint of trade. The Influencer Agreement should clearly define the scope of any exclusivity, the category of competing brands, the duration, and the geographic scope.

If an influencer fails to deliver the agreed content within the specified timeframe in New Zealand, the brand has a claim for breach of contract under the Contract and Commercial Law Act 2017 (CCLA). The brand's remedies include: cancellation of the agreement and recovery of any advance payment made (if the failure is a sufficiently serious breach); damages for the loss suffered as a result of the breach (e.g., the value of alternative influencer engagement that needed to be arranged at short notice); and specific performance (in theory, though courts rarely order specific performance of personal service contracts). The Influencer Agreement should include a liquidated damages clause specifying a pre-agreed amount of damages for failure to deliver each piece of content, which simplifies the brand's position if the influencer defaults. The agreement should also require the influencer to notify the brand promptly if they cannot meet a posting deadline, so the brand can make alternative arrangements. Brands should also include a right to require the influencer to remove or archive content that breaches the agreement (e.g., content that has not been approved, or content that includes incorrect disclosures).

A Influencer Agreement (New Zealand) does not legally require a lawyer in New Zealand, and individuals and businesses may draft and execute the document independently. The Companies Act 1993 does not mandate legal representation for the creation or signing of this type of document. However, seeking independent legal advice from a qualified New Zealand lawyer is recommended for transactions involving substantial financial value, complex regulatory requirements, or cross-border elements where multiple legal jurisdictions may apply. A lawyer can verify that the document complies with all applicable statutory requirements, identify potential risks specific to the transaction, and confirm that the terms adequately protect the interests of all parties involved. The High Court of New Zealand has jurisdiction over disputes arising from this type of document, and Companies Office may impose additional compliance obligations depending on the nature of the underlying transaction. Professional legal review is particularly advisable where the document will be submitted to government agencies or used as evidence in legal proceedings.