Legally Influencer: regulation and compliance in influencer marketing

A week ago, the French Parliament adopted a bill to regulate social media influencers’ activities in a bid to curb the promotion of dangerous products and trends. 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.

It prohibits the promotion of certain practices – such as cosmetic surgery and therapeutic abstention – and prohibits or heavily regulates the promotion of several medical devices. It also bans the promotion of products containing nicotine. It tackles sports betting and gambling: influencers will no longer be able to promote subscriptions to sports forecasts, and the promotion of money games will be limited to platforms that technically restrict access to minors. The penalties for non-compliance can go up to two years in prison and a fine of €300,000.

Trivialities rarely have an impact. With the abundance of online content we consume every second, it seems that more often than brands and marketing agencies would like to admit, does an influencer marketing campaign match the investment to the expectation: conventional content, non-contextualised captions, duplicate imagery fails to impress savvy consumers, who very often, become accidental content creators themselves. At the same time, there is a plethora of regulations and compliance instructions that must be met and which if not taken seriously, can be of a serious detriment both to brand and creator. The professionalisation of influencer marketing coupled with a series of high-profile scandals around influencer content have urged authorities at the European and national level to streamline the industry, to avoid fraud, misleading campaigns and consumer misinformation.

Do consumers need protection from influencers?

The push for stricter regulations in influencer marketing stems from prominent scandals involving unethical influencers and agents who exploit the medium to promote products without regard for consumer well-being. The industry’s drive to enhance its reputation acknowledges that these scandals tarnish its image, despite the fact that most influencers, brands, and agencies prioritize responsible practices. The goal is to rectify these issues and ensure that the industry as a whole maintains high standards of ethical conduct.

In terms of consumer protection, influencer marketing achieves success by utilizing personalized and editorial content from influencers to promote brands, products, and services. This has led to industry discussions centering around the need for a distinct separation between advertising and commercial influencer content versus editorial content. Throughout Europe, there is a widespread consensus that influencer content featuring paid or gifted elements must be clearly and immediately identified. The regulation of influencer marketing in European countries primarily falls under existing national and EU advertising and consumer protection laws, alongside advertising self-regulatory guidelines. Disputes related to influencer marketing practices are commonly addressed through self-regulatory authorities (SROs).

What is an influencer?

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”.The concept of influencer includes any human-controlled online profile that is active on any social media platform and shape attitudes by publishing online content. Only content for which the influencer has received some form of compensation, whetherfinancial or through other arrangements, is considered in remit of SROs, given its marketing intent. Brand control may also be a factor that helps in identifying whether a piece of content is marketing. 

Compensation refers to the acknowledgment by a brand of the influencer’s services in promoting their products or services. This compensation can take various forms, including formal contractual agreements that outline monetary payments or arrangements where influencers receive free goods or engage in reciprocal commitments for their benefit. 

EU’s Digital Services Act

The Digital Services Act (DSA), considered one of the most ambitious digital oversight laws globally, establishes a connection between its provisions and other national or European regulations governing online content. Particularly for influencers who monetize their content, the DSA introduces a new definition of illegal content that holds significant relevance to their activities.

According to the DSA, illegal content encompasses any information or activity, including product sales or service provision, that does not comply with Union law or the law of a Member State, regardless of the specific subject matter or nature of that law.

In light of this, influencer marketing communications should be carefully designed and presented to ensure immediate recognition by the audience. Disclosure of partnerships or agreements between the advertiser and the influencer must be clearly conveyed whenever a marketing message is shared. While there are multiple ways to achieve disclosure, it is crucial to ensure that the public, as a whole, is aware of these engagements and recognizes them, rather than targeting only a specific group or selected audience.

It is important to note that non-compliance with EU and national laws concerning advertising content may render influencer content illegal under the DSA, subjecting it to the provisions and penalties outlined in the act.

Will the EU’s new Digital Safety Act impact influencer marketing regulations?

Although there is no dedicated EU legislation solely for influencer marketing, influencers who promote products and services through commercial partnerships are bound by a range of EU consumer protection and unfair commercial practice laws. Furthermore, with the introduction of the Digital Services Act (DSA), influencers will have increased responsibility to ensure that their online content adheres to appropriate standards, complies with legal requirements, and does not mislead the audience.

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”. 

Training Influencers

Organizing customized training programs presents an impactful approach to connect with influencers and increase their understanding of the regulations governing online marketing content. These tailored programs enable self-regulatory organizations (SROs) to directly engage with influencers, providing them with valuable insights into the challenges and relevant regulatory frameworks. Moreover, this presents an opportunity to formalize the training process through a test, which, upon successful completion, grants influencers a certificate.

It is important to emphasize that the certificate solely confirms the influencer’s compliance with the latest advertising regulations test and may involve recurring testing procedures. By obtaining this certificate, influencers can designate their content and profiles as having met the requirements, thereby raising awareness among their peers about the applicable SRO rules concerning advertising practices.