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Yung Filly arrest: Advice for brands on pre-empting crises, mitigating risk and drafting creator contracts

Posted by Sara McCorquodale in Strategy

4 months ago

Creator and musician Yung Filly has been charged with multiple counts of rape and assault while on tour in Australia, and the severity of the case has left the influencer industry reeling.

This year brands such as Heinz and Perplex have co-created products with the YouTuber, whose real name is Andrés Felipe Valencia Barrientos, but have now deleted content featuring him from their channels. The Football Association cancelled a new cooking show which was set to include Barrientos alongside players such as Bukayo Saka, Ezri Konsa and Jarrod Bowen. As of yesterday, posters of him were still hanging in locations of German Doner Kebab.

The fall out from this case is set to ripple across the industry. Barrientos worked with multiple entertainment and retail brands on projects which required substantial investment. For example, he co-hosted Gymshark’s YouTube dating show HIIT IT OFF with Grace Keeling (GK Barry) which launched in March this year. Many brands may now decide to remove all content featuring him and this will mean losing a body of work which is still delivering audience engagement.

From a strategic perspective, this case will also surely spark conversations about working with macro talents who are dominating specific verticals. In 2024, a large amount of high-profile work has been concentrated on a small pool of creators and, moving forward, diversification of talent is essential for mitigating risk.

The importance of making moral expectations clear

This case is a reminder of how an influencer-driven communications crisis can cause immediate reputational damage to associated brands. Rebecca Toman, a partner at law firm Carter-Ruck, advised businesses to take “proactive steps” to ensure they are protected by contracts.

“Well-drafted morality clauses allow a brand to terminate the relationship if the talent engages in behaviour which conflicts with the brand’s values whether that behaviour is on or offline,” she said. “As a minimum, these should include criminal and illegal activity, public misconduct and offensive statements but should also seek to define other specific behaviours and/or statements which are incompatible with brand values – for example, social, political and cultural statements.”

She added: “Social media use clauses can also be helpful. These ought to set out clear parameters on the creator’s expected online behaviours and may cover cyber bullying and harassment, language use including defamatory or denigrating posts as well as engagement with competitors and any other behaviours that may possibly result in harm to the brand.”

Clauses for crisis scenarios

Creator contracts should outline the consequences of a crisis and ensure these are understood at the point of signing.

Persephone Bridgman Baker, also a partner at Carter-Ruck, said: “Contracts that best protect brands are those which include clauses designed to be relied upon in crisis scenarios and permit immediate termination or suspension in the event of contractual breach.”

Paperwork should “map out” public statements that can be made, detail who will make them and the time frame of this. If contracts do not include this, brands will need to negotiate an exit with the creator but this is far from ideal.

“Relying on implied terms in these circumstances is possible but no replacement to cast iron contractual clauses which have pre-empted the position,” said Bridgman Baker. “If the contract is ambiguous or fails to deal with the scenario, it is wise to seek legal advice quickly so as to minimise the chance of a wrongful termination or breach of contract claim from the creator.”

She added: “Consideration should be given to communication with all stakeholders such as employees, investors and shareholders and other brand collaborators if required. Much of the groundwork can be in place before the crisis happens with an effective crisis management protocol with which everyone in the communication, legal and strategy teams are familiar.”

By Sara McCorquodale, CEO and founder of CORQ. Picture credit: Yung Filly via YouTube.