Non-solicitation Clauses for Influencer Agencies in Australia

If you run an influencer agency, a non-solicitation clause can protect the relationships you have spent time and money building, but only if the clause is drafted properly. A lot of agencies make the same mistakes. They copy a restraint from a generic employment contract, they make the restriction too broad, or they assume a short clause will automatically stop a creator, employee or client from being poached.

The problem is that Australian courts do not enforce every restraint just because it appears in a contract. If your wording goes further than reasonably necessary to protect your legitimate business interests, the clause may not hold up when you need it most. That matters when an account manager leaves with creator contacts, when a brand approaches your talent directly, or when a former contractor starts pitching to your client list.

This guide explains what a non-solicitation clause for influencer agency arrangements usually covers, where these clauses commonly appear, what legal issues to check before you sign, and the drafting mistakes that most often cause trouble for Australian businesses.

Overview

A non-solicitation clause is usually enforceable in Australia only if it is reasonable and tailored to a real business interest, such as protecting client relationships, confidential information or agency goodwill. For influencer agencies, the detail matters because the clause may sit across talent agreements, client services agreements, employment contracts and contractor agreements, each with different risks.

• Who is restricted, such as an employee, contractor, creator, brand client or agency partner.
• Who cannot be approached, including clients, prospective clients, creators, suppliers or staff.
• What conduct is banned, such as soliciting, inducing, canvassing, dealing with, or accepting work from certain contacts.
• How long the restriction lasts, and whether the period is realistic for the relationship involved.
• Where the restriction applies, especially if the agency works nationally or with overseas campaigns.
• What legitimate business interest the clause is protecting.
• Whether the clause works properly with confidentiality, intellectual property and post-termination obligations.

What Non-solicitation Clause for Influencer Agency Means For Australian Businesses

A non-solicitation clause for influencer agency arrangements is a contract term that tries to stop one party from targeting the other party's commercial relationships for a set period. In practice, it is most often used to stop poaching.

For an influencer agency, that can mean several different things. A former employee might be prevented from approaching the agency's creator roster. A creator might be restricted from bypassing the agency and approaching a brand client introduced through the agency. A brand client might be limited from directly hiring talent first sourced and negotiated by the agency, at least for a defined period.

The clause sits within the broader Australian law on restraint of trade. That area of law starts from the position that people should generally be free to do business. A restraint will usually only be enforceable if it protects a legitimate business interest and goes no further than reasonably necessary.

What a clause usually protects

The key point is that the law does not protect you from ordinary competition. It does, however, recognise that some business relationships deserve protection where your agency has invested in building them.

Legitimate interests for an influencer agency often include:

• client relationships developed through your account management and campaign work
• creator relationships and talent databases built over time
• confidential pricing, campaign strategy and commission structures
• goodwill connected to your agency brand and reputation
• staff relationships where senior team members have direct access to your core contacts

If the clause is really just trying to stop someone competing generally, that is where agencies often get caught.

Where these clauses appear in agency operations

Most agencies first think about restraints in employment contracts, but that is only part of the picture. In the influencer space, a non-solicitation clause can appear across several agreement types.

• Employment contracts for account managers, talent managers, sales staff and senior leadership.
• Contractor agreements for freelance talent managers, campaign coordinators or business development support.
• Talent representation agreements with influencers, creators or public figures.
• Client services agreements with brands and marketing clients.
• Introducer, referral or collaboration agreements with other agencies or management businesses.

Each document needs different wording. The clause that might be suitable for a senior employee is rarely suitable for a creator. The restriction you seek from a client brand will usually need a different scope again.

What counts as solicitation

One of the biggest practical issues is defining what "solicit" means. If the contract is vague, you can end up arguing about whether a person actually approached someone, merely responded to an inbound enquiry, or accepted work that landed in their inbox.

Depending on the deal, solicitation might include:

• approaching a client or creator to move their work away from the agency
• encouraging a staff member or contractor to leave the agency
• pitching services to a current client or recent prospect
• using agency contacts to secure direct bookings or campaign work
• inducing a contact to end, reduce or alter their arrangement with the agency

Some agreements also prohibit "dealing" as well as soliciting. That is a bigger step, because it may stop a party from accepting work even where they did not actively initiate the approach. If you want that broader protection, the wording needs to be justified and carefully drafted.

Why influencer agencies need more tailored drafting

Influencer agencies often sit in a grey zone between talent management, media buying, creative services and introductions. That creates unique drafting problems.

For example, many brand and creator relationships are fluid. A creator might work with multiple agencies across different channels, or a brand may engage agencies campaign by campaign. If your clause assumes exclusivity where none exists, it may overreach.

Another issue is that digital communications leave a messy paper trail. Direct messages, email chains and warm introductions can blur the line between a personal relationship and an agency relationship. Your contract should be clear about which contacts are protected and when a relationship is treated as having been introduced or serviced by the agency.

Legal Issues To Check Before You Sign

Before you sign a contract with a non-solicitation clause, the main question is whether the restraint matches the actual role, relationship and risk. A broad clause may look comforting on paper, but it can be harder to enforce than a narrower clause drafted around your real commercial exposure.

Is there a legitimate business interest?

The first legal issue is whether the clause protects something the law recognises. For an influencer agency, that will usually be your relationships, confidential information, goodwill or workforce stability.

If the clause appears to exist simply to stop someone from operating in the same market, that is a warning sign. You should be able to explain, in practical business terms, why the restriction is needed. For example:

• a senior talent manager has direct access to your full creator roster and negotiated rates
• a contractor will be introduced to your top brand clients during campaign delivery
• a creator has been introduced to a major brand through your agency and may bypass your commission structure
• a client has received your curated talent contacts and campaign framework

Is the scope too broad?

The second issue is scope. Australian courts look closely at how wide the restraint is. The broader the clause, the stronger the business justification usually needs to be.

Check the clause for:

• the class of protected contacts, such as all clients versus only clients the person dealt with
• whether prospective clients are included, and how they are defined
• whether creators, employees and contractors are all swept into the same clause
• whether the restriction covers active solicitation only, or also passive acceptance of work
• whether the wording extends to affiliated entities, related bodies corporate or entire client groups

A clause that says a person cannot contact any client, creator or prospect of the agency anywhere in Australia for two years may be far more vulnerable than a clause limited to contacts they worked with in the last six months.

Is the time period reasonable?

Duration is often where enforceability rises or falls. There is no single safe period under Australian law, because reasonableness depends on the role and the circumstances.

A short post-termination restraint may be easier to justify where campaign cycles are fast and relationships are personal. A longer period may be arguable for a founder, senior executive or key talent lead with deep access to strategic information and core accounts.

When you assess the period, think about:

• how long your client or creator relationships typically remain active
• how quickly sensitive pricing or campaign information goes stale
• whether the person held a junior, mid-level or senior role
• whether the person had broad access to your network or only a narrow slice of it

Some contracts use cascading restraint clauses with multiple time periods and areas. These can sometimes improve enforceability, but they still need careful contract drafting.

Does the clause fit the contract type?

The same legal wording does not suit every agreement. This is especially true for influencer agencies, where you may be dealing with a mix of employees, contractors, creators and brand clients.

For example, an employee restraint may focus on non-solicitation of clients, creators and staff after employment ends. A talent agreement may instead focus on the creator not bypassing the agency in relation to introduced clients during the term and for a short period afterwards. A client agreement may address direct engagement of agency-introduced talent outside the agreed process.

Before you accept the provider's standard terms, ask whether the clause is genuinely drafted for this relationship or simply borrowed from another context.

How does it interact with confidentiality and IP?

A non-solicitation clause should not be doing all the heavy lifting on its own. Many agency disputes involve a mix of issues, not just poaching.

You should also check whether the contract properly deals with:

• confidential information, including client lists, rate cards, briefs, strategy, analytics and campaign data
• intellectual property in campaign materials, concepts and deliverables
• return or deletion of agency information at the end of the relationship
• ownership and control of social, platform or ad account access where relevant

If your confidentiality clause is weak, a non-solicitation term may not be enough to protect your position.

Can you actually prove a breach?

Enforcement often turns on evidence. Before you rely on a verbal promise that someone will not poach your contacts, make sure the contract creates a workable paper trail.

Practical drafting points include:

• defining the relevant contacts clearly
• recording which clients or creators were introduced by the agency
• keeping written records of account allocation and campaign involvement
• stating whether inbound approaches are excluded or included
• setting out any notification process if a restricted approach occurs

If you cannot prove who introduced whom, when the relationship started, or what conduct is restricted, the clause becomes much harder to use.

Common Mistakes With Non-solicitation Clause for Influencer Agency

The most common mistake is treating a non-solicitation clause as a standard boilerplate term. For influencer agencies, poor drafting usually shows up only after a key relationship is lost, which is the worst time to discover the clause is too vague or too aggressive.

Using one clause for every relationship

An agency may use the same post-termination restraint in every agreement, from junior staff contracts to creator deals. That shortcut can create major enforceability problems.

A junior campaign coordinator may not justify the same restriction as a head of talent. A creator agreement should not read like an executive employment contract. Tailoring matters.

Trying to stop competition generally

Some clauses are drafted so broadly that they effectively try to stop a person from working in the industry at all. That is not the real purpose of non-solicitation.

The better approach is to focus on the contacts and conduct that create genuine risk. This is where founders often get caught, especially when frustration over a commercial falling-out leads to overreaching terms.

Failing to define protected contacts

If your contract refers to "clients", "prospects" or "contacts" without defining them, disputes become more likely. In the influencer space, this can get messy quickly.

Questions that often arise include:

• does a prospect mean anyone ever pitched by the agency, or only serious opportunities?
• does a client include related entities or only the contracting entity?
• is a creator protected if the agency only had one exploratory call?
• what happens where a relationship existed before the agency became involved?

Clear definitions make the clause more practical and easier to defend.

Ignoring existing relationships and carve-outs

Many people entering agency arrangements already have industry contacts. A creator may have longstanding direct brand relationships. A contractor may come with their own network. A client may already work with some talent independently.

If the contract fails to carve out pre-existing relationships, the restraint can become unfair and commercially unrealistic. That can also make negotiations harder than they need to be.

A sensible carve-out might identify:

• existing clients or creators known before the contract started
• publicly available opportunities not sourced through the agency
• work that falls outside the agreed service scope

Overlooking passive approaches

Agencies often assume a non-solicitation clause automatically stops a former employee or creator from accepting inbound work from your contacts. It may not.

If you want to restrict both active solicitation and certain forms of dealing, the clause should say so. You also need to consider whether that broader restriction is reasonable in the circumstances.

Relying on the clause without operational safeguards

A good contract works best when your internal processes support it. If your agency has weak onboarding, inconsistent CRM records or unclear account ownership, legal rights become harder to enforce.

Operational safeguards worth reviewing include:

• written records of who introduced each client or creator
• clear rules about using personal devices and direct messages for agency business
• offboarding processes for staff and contractors
• return of passwords, account access and agency documents on exit
• consistent contract terms across the relevant relationship chain

If your employee agreement, creator agreement and client agreement all say different things about introductions and direct dealings, gaps can appear quickly.

Assuming the clause is enough on its own

A non-solicitation clause is only one part of your contract framework. In many agency arrangements, payment provisions, commission clauses, exclusivity settings, confidentiality obligations and dispute procedures are just as important.

For example, if a creator is free to terminate immediately and your contract says nothing clear about commission on introduced deals, a non-solicitation clause may not fix the commercial problem. The same applies where a client agreement is silent on direct engagement fees or agency protections around introductions.

FAQs

Are non-solicitation clauses enforceable in Australia?

They can be, but only if they are reasonable and protect a legitimate business interest. A clause that is too broad in time, scope or coverage may not be enforceable.

What is the difference between non-solicitation and non-compete?

A non-solicitation clause targets specific conduct, such as approaching clients, creators or staff. A non-compete clause tries to stop someone from carrying on a competing business or role more generally.

Can an influencer agency stop a creator from working directly with a brand?

Sometimes, if the contract clearly covers agency-introduced brands or direct dealings for a reasonable period. The wording needs to be specific, commercially fair and tied to the agency's legitimate interest.

Should a non-solicitation clause cover prospective clients?

It can, but this needs careful drafting. A vague reference to all prospects is risky, so it is better to define prospects narrowly, such as qualified leads the person materially worked on in a recent period.

Do contractor agreements need non-solicitation terms too?

Often yes, especially where contractors have direct access to your client list, creator roster or pricing information. The clause should reflect the contractor's actual role, rather than copy wording from an employment contract.

Key Takeaways

• A non-solicitation clause for influencer agency arrangements is designed to protect commercial relationships, not to block competition generally.
• Enforceability in Australia depends on reasonableness, including the clause's purpose, duration, scope and the contacts it covers.
• Influencer agencies usually need tailored wording across employee contracts, contractor agreements, talent agreements and client services agreements.
• Clear definitions matter, especially around solicitation, protected contacts, introduced relationships, passive approaches and pre-existing relationships.
• Confidentiality, intellectual property, commission and offboarding terms should work with the non-solicitation clause, not sit separately without coordination.
• Good records and practical internal processes make these clauses far easier to rely on if a dispute arises.

If you want help with contract drafting, restraint clauses, talent agreements, and client services terms, you can reach us on 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.

Official Sources to Check

Rules and regulator guidance can change. Check the current official material most relevant to this issue before relying on the article:

• ACCC: Contracts and unfair contract terms