There’s been a bit of furore in recent weeks surrounding a couple of influencers. Both Elle Darby and Molly Mae have slipped into infamy as a result of their comments.

Molly Mae’s regarded work ethic. People weren’t happy with her line that everyone has the same 24 hours in the day and that the reason she got to where she is - when others haven’t - is because she worked her “absolute a*** off”. Many called out those comments as insensitive because they ignored that social inequality was far more likely to be the reason others hadn’t achieved comparable “success” - as opposed to people being unwilling to shed some a***. Others gleefully contrasted her view with previous comments when Molly Mae was horrified by the prospect of working a 12 hour day.

Whilst Molly Mae has since confessed her comments on wealth inequality were “tone deaf”, Darby’s historic comments were far worse – in fact they were, by her own recent admission, “racist, fatphobic, homophobic”.

In Elle Darby’s case, an apology video posted to her YouTube channel was not enough to save her and she was reportedly dropped by her talent management and influencer marketing agency a few days later.

I’ve written before about the issue of terminating controversial talent in the context of the music industry, when DaBaby made homophobic remarks at a festival in Miami and several promoters dropped him from upcoming events.  As I said then, reprehensible comments in and of themselves do not give promoters a right to tear up performers’ contracts – doing so may amount to a breach of contract that could result in the artist pursuing a claim for damages.

The same goes for talent agencies and the people signed to their books. In order to avoid potential liability in this situation agencies routinely include anti-disparagement clauses in talent contracts. Such clauses broadly contain terms that will allow the agency to terminate the contract in the event that an influencer (or other talent) does or says anything that might encourage disparaging views or otherwise brings the agency into disrepute.

There's obviously a subjective element to determining whether comments/actions qualify as disparaging or bring the agency into disrepute. This means the agency will have to be certain the clause is triggered before relying on it, otherwise they may still face a claim for breach of contract for wrongfully relying on the clause to terminate.

However, where comments are made that cross the line - as Elle Darby’s did - these clauses are an important tool to give agencies the opportunity to act whilst reducing their risk of liability. So agencies should be vigilant in checking that anti-disparagement provisions are a standard clause across all talent contracts.