Divorce for influencers

Separating when you, or your partner, have a social media presence from which you, or they, earn an income is a relatively new concept. Accordingly, there is little guidance or case law about how these social media accounts will be treated by courts in England & Wales during the divorce or dissolution process. However, these accounts do potentially have a value and below we consider some points which may be relevant if you are going through a divorce or dissolution and there are social media accounts which need to be considered.

What is an influencer?

An influencer is a person who has built up a sizeable social media presence and following and can make money from their social media accounts. These accounts may be based around on an individual, a couple or a family and can be considered digital assets. The common social media platforms that host these accounts tend to be YouTube, Instagram, TikTok, blogs, streaming services such as Twitch or even platforms such as OnlyFans.

How do influencers make money from social media?

There are several ways that influencers make money from their social media accounts including:

1. Sponsored posts — the influencer promotes a brand. The larger the audience the more an influencer can command for sponsored posts.
2. Affiliate marketing — influencers are paid commission for sales of products they generate either by providing a discount code, or by people following a link posted on the social media account.
3. Brand ambassadorship — The influencer teams up with a brand to promote their products or services. The influencer is renumerated for attending places, events or restaurants and posting photos or videos on social media. They usually sign an exclusive contract with the brand, for which they are usually paid a lump sum upfront.
4. Product reviews — The influencer is paid by companies to review their products.
5. Merchandise — The influencers earn money selling their own products or services.
6. Social media platform payments — some social media platforms pay influencers directly. YouTube has a Partner Programme which allows creators to make money from adverts on their videos and TikTok has a Creator Fund which pays per number of views.
7. Appearances — some companies hire influencers to give talks or make appearances at their events or conferences.
8. Consulting or managing — experienced influencers can be hired to improve brands or companies’ social media accounts, either by consulting or acting as the brand’s social media manager.
9. Adverts — Influencers can sell advertising space on their blog page, website or alongside videos on YouTube. The influencer will then also receive a payment every time someone clicks on the advert.
10. Sponsored content — Brands pay influencers to create content usually in the form of videos and posts about their brand which the influencer then publishes on their accounts.
11. Subscriptions, tipping, donations — influencers can set up subscriptions for extra content or receive tips or donations directly from their followers.
12. Extra benefits — many influencers receive free products, services or experiences from companies or brands. These are gifts in the hope that the influencer will post about them rather than posts for which the influencer receives payment.

How do we value social media accounts?

Social media accounts have a potential value to be considered when negotiating a financial settlement. Where there are financial proceedings, the court has wide powers to distribute assets and there are several possible options on how social media accounts can be valued.

Limited company

Some influencers set up a limited company which can be valued for divorce or dissolution purposes. If the influencer has products or services which are sold through this company, then the company will have a value to a third party and expert evidence may be required to value the company.

If the limited company is just used by the influencer to deal with the income that the social media accounts produce through various revenue streams, then the company is more difficult to value. In these circumstances the company is essentially the influencer, and it is unlikely that it will have a value which a third party will want to purchase. However, there may still be goodwill associated with an account which a third party may wish to purchase. More information about how courts value businesses.

Income stream

If the influencer has not set up a limited company, then they may be considered self-employed. In this case, the income which they are able to generate through social media must be considered.

There may also be valuable long-term partnerships or contracts which also need to be considered.

Profile of the individuals involved

The value of a social media account does not necessarily lie in the account itself but in the content and the individuals behind the account. This is especially the case if the account content is tied closely to the individual’s personal life.

If the joint account is run by a couple, or focuses on family life, then the valuation of the account could change overnight. When the couple separates, there could be a decrease in followers and interest in the account, which will have a significant bearing on the income that the account produces.

It should also be considered if the account has a sentimental value, especially if this contains photographs and videos of children. How these can be shared if only one person is keeping the account must be agreed.

Disclosure of social media accounts

When there are financial negotiations or proceedings, all parties are required to give full and frank financial disclosure, usually in Form E. Where there are social media accounts there are several ways which these can be captured in the financial disclosure.

• Bank accounts and investments — parties are required to provide a year’s worth of bank statements for all accounts. These should be analysed for payments from social media companies and brands.
• Monies owed — if an influencer is due money from a company this should be disclosed.
• Personal belongings — gifts or products which an influencer has received, and which are valued at more than £500 should be disclosed.
• Limited company — If the influencer owns a limited company, then disclosure of copies of the business accounts for the last two financial years and a letter from an accountant or a formal valuation is required.
• Self-employed income — if an influencer is receiving income from social media accounts on a self-employed basis, then disclosure should take place of a copy of the last tax assessment or letter from an accountant confirming tax liability and estimated net income for the next 12 months.
• Any other assets — This covers any other assets not previously disclosed elsewhere. This could include long term partnerships or ongoing contracts and any asset likely to be received in the foreseeable future.

Who owns a social media account?

If social media accounts are held in the name of a company, then the presumption is that the accounts are owned by the company rather than the person operating them. The owner of the company and the person operating the accounts may of course be the same person.

If a social media account was set up and mainly operated by one person then it is likely that it will be owned by that person.

Ownership of joint accounts which have been set up in joint or family names is a more difficult question and further guidance from the courts is needed on this point.

It is important to check the terms and conditions of the social media platform in question as this may set out the terms of ownership of accounts, but joint accounts are likely to be considered to be owned jointly.

How can social media accounts be shared on divorce?

Social media accounts could be considered marital property and subject to division on divorce or dissolution. For certain accounts, determining who is the owner, and will therefore retain ownership of the account, will be clear and straightforward.

If there is a joint account, then it may not be possible to share this so the couple will have to decide who will retain control of the account and how it will be managed going forward. There will often be multiple accounts with the same name or brand. The party not retaining the account must hand over all passwords and no longer access these accounts.

If the other person has appeared on one person’s social media account or was the other half of a joint account, it must also be considered how they might be fairly compensated in respect of their share of the value. This could include dividing partnerships with brands, endorsement deals and other sources of income. Again, contracts must be carefully analysed as there maybe an ongoing obligation for more posts. In that circumstance, an agreement should be reached about how these obligations will be fulfilled and how the income will be divided.

If there is no agreement about who will retain control of joint accounts, then the solution may be that neither party continues with the account and the account ceases posting. In this circumstance, any income received from that account after the separation should be shared between the parties.

Avoiding a dispute

The issue of who owns social media accounts, how the income will be shared and what would happen if a couple separates can be dealt with in a pre or post nuptial agreement. An influencer who is planning to get married or enter into a civil partnership should consider entering into a prenuptial agreement. If you are an influencer who is already married, then a postnuptial agreement can be considered.

What are the risks for influencers going through a divorce?

An immediate risk when a couple separate is the stealing of social media accounts or content through one person changing the passwords and not disclosing these to the other person. When a couple separate the presumption is that they will withdraw their consent to the other person accessing their accounts and using their usernames and passwords. There could be potential criminal and civil consequences if one person continues to access another’s social media accounts after separation. Again, with joint accounts, the parameters of ownership and consent may be less clear.

Another risk for influencers who have a large social media presence is their ex-partner posting negatively about them on their own social media. However, there may be criminal consequences if a one person posts personal or harassing content about their ex-partner. To stop a person posting, an application for a non-molestation order may need to be considered.

There is also the risk of financial damage from a separation. If the influencer’s following is largely because of them being part of a couple or a family then there could be a decline followers, engagement, demand, and partnerships following the couple separating. The decline in income and whether an individual will be able to continue to earn an income at the same level will need to be considered within the financial proceedings.

Influencers also need to pay careful attention to contractual agreements and make sure that they are complying with any contractual requirements or obligations. These may include posting regularly which could be challenging during a difficult time such as a separation or continuing to post together even after influencers have separated. There may be financial consequences or penalties of failing to comply with contractual obligations.

What if I would like photos and videos of me removed from my ex-partner’s social media accounts?

Another question which may need to be explored by family courts is what would happen if one person would like content such as posts or videos including them from during the relationship removed from social media.

There is also a rise in divorce influencers where individuals going through a separation post content about their divorce or dissolution, and it may be necessary to consider whether the ex-partner could prevent this content from being posted.

In relation to posting photographs of any children from the relationship, both parents would likely need to agree to this. If one parent does not agree, they may need to make an application to court for a prohibited steps order to prevent the other parent from posting any further videos or photographs of their children.

Some tips for influencers going through a separation, divorce or dissolution

1. Maintain privacy — Some aspects of your personal life may be best kept private. Consider how much you would like to share with your audience, taking into consideration how your ex-partner feels about sharing details of your separation. It may be best to agree with your ex-partner how you will break the news of your separation and agree the wording of the announcement. If you do wish to post about separating, you may choose to release posts later, so you are not dealing with comments or messages whilst experiencing the emotions in real time.
2. Plan content carefully — Be mindful of the content you are posting during this time especially about your ex-partner and including your children.
3. Take a break if needed — Negative reactions to your separation are unfortunately to be expected but it is important to take a break from social media if these are impacting you.
4. Seek support and prioritise your well-being.
5. Stay as professional as possible — Continue to fulfil your obligations to sponsors and followers as this can help to protect your brand image.
6. Seek legal advice — The question about what to do with social media accounts on separation is likely to be a question which increases in frequency in the future and which courts will have to grapple with. If you or your partner have a social media presence which generates income, it is important that you seek early advice from a specialist family lawyer.