Calls to harmonize influencer marketing laws in the EU are increasing, as some states pull ahead in the fight to crack down on nefarious practices that are damaging the fledgling industry.
In the past month, the French government has proposed laws to define the roles of ‘commercial influencer’ and ‘influencer agent’, ban influencers from promoting cosmetic surgery and create a dedicated team within consumer affairs and protection service to investigate potential illegalities in influencer content.
Across the Channel, the UK’s Advertising Standards Authority (ASA) released beefed-up best practice guidelines for influencer marketing following a major parliamentary inquiry into the industry.
And the umbrella organization for European advertising self-regulatory organizations (SROs), the European Advertising Standards Alliance (EASA) updated its Best Practice Recommendations for Influencer Marketing for the first time in five years.
The flurry of activity amounts to recognition that influencer marketing is now a highly professionalized industry, and a strategic pillar of digital marketing essential to success.
- In most European countries, influencer marketing is regulated under existing advertising and consumer protection laws, with disputes resolved by the self-regulatory system.
- In the EU, there is consensus that commercial influencer content should be labeled clearly and immediately, although the correct form of labeling differs from country to country.
- The new EU Digital Services Act (DSA) will impose greater responsibility on influencers to ensure that content is not illegal, misleading or inappropriate.
Which organizations are responsible for oversight of influencer marketing regulations in the EU?
In almost all European countries, influencer marketing is regulated under existing national and EU advertising and consumer protection laws, as well as by advertising self-regulatory rules, with disputes most often resolved through self-regulatory authorities (SRO).
“Whenever there’s discussion about new regulatory tools, we always try to position advertising self-regulation as part of the solution,” comments EASA self-regulation development officer Tudor Manda.
“A consumer complaint lodged with an SRO usually gets handled in 67% of cases in under two weeks, so it’s quite quick. There’s about 14 SROs in Europe from our network which have implemented influencer marketing guidelines, with another seven currently drafting them.”
Over and above the SRO system, France and Belgium have both moved to regulate influencer marketing with new laws. In Belgium, new national laws have been met with dismay by the industry for declaring commercial influencers equivalent to business operators and requiring them to publish address details or risk fines of up to €80,000.
In France, self-regulatory organization the ARPP (Autorité de Régulation Professionnelle de Publicité) is a trailblazer for responsible influence, having created an Observatory of Responsible Influence and Certificate of Responsible Influence several years ago.
The laws currently being debated in the French Parliament follow an extensive industry consultation process, and have been accompanied by the release of influencer best practice guidelines.
“We have the feeling that we have been listened to and heard, and the measures announced are going in the right direction,” comments Kolsquare CEO Quentin Bordage.
“All stakeholders will have to be vigilant to ensure the necessary pedagogy, in particular the distribution of the Best Practice Guide to KOLs, agencies and advertisers, and to ensure the repression of excesses is effective.”
However some provisions in the French law, such as the obligation that all influencer/brand partnerships be covered by contracts regardless of the size or monetary value of the partnership, and the banning of certain sectors from using influencer marketing while still being authorized to use traditional advertising, have raised eyebrows amongst industry stakeholders.
Do consumers need protection from influencers?
Efforts to tighten influencer marketing regulations are being driven by highly publicized scandals involving unscrupulous influencers and agents who have seized on the power of the medium to sell everything and anything to unsuspecting consumers.
Efforts to clean up the industry are a recognition that such scandals give the industry a bad name, while the vast majority of influencers, brands and agencies work hard to act responsibly.
From a consumer protection standpoint, influencer marketing is successful because it leverages personal, editorial content from influencers to promote brands, products and services.
This is why industry debate has crystallized around a clear delineation between advertising and commercial influencer content and editorial content. In Europe, there is broad consensus that influencer content that includes a paid or gifted element must be clearly and immediately labeled.
“There’s an understanding with consumers that influencers need to get paid, I don’t think they have a problem with that, as long as the content provides value, is funny or entertaining. What we don’t want is for consumers to feel hoodwinked,” comments UK Influencer Marketing Trade Body (IMTB) Director General Scott Guthrie.
How do influencer marketing regulations differ from regulations governing traditional advertising?
In response to calls for tighter influencer marketing regulations, influencer marketing trade bodies are sprouting up in several countries, including France, the UK and Germany. Last week in Berlin, Germany’s dormant Federal Association for Influencer Marketing (BVIM) was resuscitated with an event welcoming around 60 participants.
In Germany, influencer marketing is regulated under various competition, media and advertising laws, and several high-profile court cases about influencer content have ruled on labeling requirements and influencer content differentiators.
BVIM Chairperson of the Executive Board Jeanette Okwu is calling for European harmonization of influencer marketing regulations, and argues current rules in Germany are too tough compared to requirements for traditional advertising.
“As soon as we have a complaint, there is finger pointing etc. Consumer protection law is really tight. The bad apples are shamed publicly and put on trial but it doesn’t address the elephant in the room which is how harsh these regulations are,” comments Okwu.
“If you watch a film and see Coca Cola there is nothing right there in the scene saying so, it’s in the credits at the end. It’s a mismatch, they’re cracking down on influencers who are not professional advertisers. They’re content creators with paid partnerships. It needs to be clearer and it needs to be an equal opportunity.”
Guthrie says the majority of influencers understand the rules, and does not take issue with the requirement that commercial influencer content be clearly and immediately labeled. He agrees that legacy media and advertising have an easier time with regulators than influencers.
“If you’re advertising on Instagram or TikTok, what is an influencer? The ASA would say an influencer is anyone with a follower. There are lots of questions around when does an amateur become a professional,” says Guthrie.
“Influencers are treated unfairly in terms of a level playing field. There is a feeling that legacy media has an easier ride compared with someone on TikTok or Instagram. There’s a disincentive for legacy media to eulogize about influencer marketing because ultimately they’re vying for the same ad spend.”
How are complaints about influencer marketing content resolved?
In most countries, consumer complaints about influencer content are managed by SROs. In Spain, for example, complaints are handled by an Advertising Jury under the auspices of Autocontrol. Companies signed up to Autocontrol’s Code of Conduct on the use of Influencers in Advertising are bound by its decisions.
Between January 2021 and March 2023, Spain’s Advertising Jury resolved 72 cases around influencer content, of which 52 involved companies not signatory to the code.
“The fact that there are more than 900 companies adhering to the Code, representing a very high percentage of advertising investment in Spain, demonstrates the knowledge and commitment of the Spanish industry to responsible influencer marketing,” comments Autocontrol Communications Director Sandra Cid Dopazo.
“However, both the aea (Spanish Association of Advertisers) and Autocontrol and now IAB Spain are making an important effort to continue to raise awareness, through information and training actions, of the existing legal obligations and the code among the rest of the companies, influencer agencies and influencers.”
Will the EU’s new Digital Safety Act impact influencer marketing regulations?
The EU defines an influencer as “a content creator with a commercial intent, who builds trust and authenticity-based relationships with their audience (mainly on social media platforms) and engages online with commercial actors through different business models for monetization purposes”.
While there is no specific EU law for influencer marketing, influencers promoting products and services under commercial partnerships are subject to a series of EU consumer protection and unfair commercial practice laws.
In addition, the recently enacted Digital Services Act (DSA) will place greater responsibility on influencers for ensuring that online content is appropriate, legal, and not misleading.
Arguably one of the most ambitious digital oversight laws globally to date, the DSA creates a link between its provisions and other national or European regulations governing online content. For influencers monetizing content, it sets out a new definition of illegal content that is particularly relevant to their activities.
Under the DSA, illegal content “is any information or activity, including the sale of products or provision of services which is not in compliance with Union law or the law of a Member State, irrespective of the precise subject matter or nature of that law”.
This means that failure to comply with EU and national laws on advertising content could render influencer content illegal under the DSA and subject to its provisions and penalties.
Raising awareness about responsible influence best practice
In a rapidly growing and professionalizing industry that sees new players enter the market daily, governments, SROs and industry players have recognized the urgent need to raise awareness amongst influencers and industry actors about their obligations both to consumers, and under the law.
“Part of the reason we’ve updated this Best Practices guidance was because there were a lot of new marketing practices within influencer marketing, new social media that also appeared. We wanted to reflect the detective work that SROs do to ensure a piece of influencer content is marketing, and provide a bit more guidance in how they did their work in handling complaints, and issues with influencers,” comments the EASA’s Manda.
To this end, the EASA is looking closely at whether it needs to adopt an oversight and education model similar to that set up in France by the ARPP. To date, more than 450 content creators have completed the ARPP Certificate of Responsible Influence, and several French brands — including multinationals L’Oréal and Club Med — have made obtaining the certificate obligatory for all influencer collaborations.
“It is something we are discussing internally. The advantage that everyone sees in the observatory and certificate process is that it feeds into the question of trust that the self-regulatory system provides for the industry, businesses, policy makers, and consumers,” comments Manda.
What are the influencer marketing regulations in your country?
The European Union does not have specific legislation regulating influencer marketing. However, the EU’s Electronic Commerce Directive and Audio Media Services Directive require all influencers in member states to mention commercial partnerships on communications, including the advertiser’s name.
Meanwhile, two major new pieces of EU legislation that were enacted in November 2022 — the Digital Services Act and the Digital Markets Act — introduce sweeping new oversight requirements on digital business practices and service providers in the bloc. Under the new laws, influencers will have to accept greater responsibility for their online content and to ensure it is appropriate, not misleading or illegal.
As a general rule, influencer marketing is regulated in Europe under existing national advertising and consumer protection laws, with self-regulatory authorities responsible for resolving complaints and disputes about influencer content on social networks.
In Europe, there is a consensus: influencer marketing content that has been paid for, either financially or in kind, must be clearly and immediately labeled on posts.
How posts are labeled differs from country to country, depending on cultural and linguistic differences. The Best Practice Recommendation on Influencer Marketing 2023 recently issued by the European Advertising Standards Alliance (EASA) provides a list of recommended keywords and hashtags for proper disclosure in various languages.
Below is a brief outline of various SROs, laws and guidelines governing Influencer Marketing in Europe, the UK and the USA.
According to the Austria Advertising Council, influencer marketing content is subject to the provisions of various media and consumer protection laws. The AAC is not authorized to issue penalties, but can refer cases to competent authorities. Under the AAC’s Influencer Code of Ethics “two conditions characterize influencer activities as marketing communication: compensation and control”.
Several conflicting laws and regulations have been introduced in Belgium in recent years, making for a chaotic regulatory landscape. However, in 2022, the Economy Ministry and the State Secretary for Consumer Protection released influencer guidelines clarifying that influencers must comply with advertising provisions set out in the Code of Economic Law. Advertisers and organizations who commission influencer content are responsible for monitoring content and could be held liable for breaches.
Influencer marketing is subject to provisions under advertising law. The National Council for Self-Regulation has issued the Influencer Marketing Recommendation for the effective application of the National Ethical Standards for Advertising and Commercial Communication (Ethical Code) which sets out definitions of influencer marketing, editorial control and consideration of contractual agreements.
The Finnish Competition and Consumer Authority defines influencer marketing as a commercial operation between companies and influencers whose goal is to promote the sale of company products or raise the brand profile. The organization published guidelines in 2019 on obligations to communicate commercial partnerships under the Consumer Protection Act.
The French parliament passed laws in April 2023 that defined the statute of ‘commercial influencer’ and ‘influencer agent’, while also banning promotion of cosmetic surgery by influencers, reinforcing protections for minors working as influencers and establishing a dedicated team within the consumer affairs and protection service to investigate complaints about influencer content. The government also released a Best Practice Guide for Influencers and Content Creators to inform them of their rights and obligations under the law. Failing to announce the commercial intent of content is punishable by up to two years prison and €300,000.
There is no specific law in Greece governing Influencer Marketing, however the sector is subject to provisions of the Hellenic Advertising-Communications Code. Greek SRO the Communication Control Council (CEC) is a member of the EASA.
Laws such as the Unfair Competition Act, Telemedia Act and Interstate Broadcasting Treaty in Germany establish rules for advertising in Germany. While there is no specific law for influencer marketing, several high-profile court cases have ruled on labeling requirements for editorial and commercial influencer posts on social media.
The Consumer Rights Act of 2022 protects consumers from false or misleading advertising. While there is no specific law for influencer marketing, the Advertising Standards Authority for Ireland’s (ASAI) Code of Standards for Advertising and Marketing Communications applies to influencer marketing. The ASAI has issued a Guidance Note on the Recognisability of Influencer Marketing Communications.
In 2019, Italy inserted the Digital Chart Regulation into the Italian Code of Marketing Communication, effectively setting binding rules for influencers and businesses using influencer marketing on social media. Under the law, commercial influencer posts must be clearly recognizable as such by the audience, but companies are not liable if they can prove they have previously informed influencers of the recognizability requirement.
The Advertising Code for Social media and Influencer Marketing sets out specific rules under the Dutch Advertising Code for advertising on social media. Influencer content is also regulated under the Dutch Media Act.
Influencer marketing is regulated in Poland under the Competition and Consumer Protection Act, the provisions of which are enforced by the Office of Competition and Consumer Protection (UOKiK). In 2022, UOKiK issued detailed recommendations on correct labeling of influencer advertiser content on social media that said all material containing a commercial message for which an influencer received a commercial benefit should be clearly marked, including with the name of the brand promoted.
Under Portuguese law, any communication with a commercial relationship is considered advertising. While there is no specific law regulating influencers, oversight of the sector is the responsibility of the Consumer Director General (DGC) under the auspices of the Economy Ministry, which in 2019 issued guidelines on influencer marketing and best practices for influencers and advertisers.
Influencer marketing is regulated under unfair competition laws. In 2020, the Association of Advertisers (aea) and self-regulator Autocontrol issued the Code of Conduct on the use of Influencers in Advertising, to which more than 900 companies have signed up. The Advertising Jury receives and rules on complaints about content, and decisions are binding for all signatories to the Code of Conduct.
Following a parliamentary inquiry in 2022, the UK government declined to introduce new laws specific to influencer marketing. The sector is therefore regulated under the existing CAP Code and the Consumer Protection from Unfair Trading Regulations 2008. Oversight of the UK’s advertising sector is carried out by SRO Advertising Standards Alliance (ASA), which recently released An Influencer’s Guide to making clear that ads are ads, and has the power to name and shame influencers found in breach of the rules.
The Federal Trade Commission (FTC) is the consumer protection regulatory authority in the US. According to FTC’s Disclosures 101 for Social Media Influencers guidance, influencers must disclose any financial, employment, personal, or family relationships with a brand, in a way that is hard to miss.