The mainstream popular culture in the early 2000s was mostly shaped by the worldwide famous stars whether in movies, TV shows or music industry. The „then“ influencers gave inspiration to the mass public for what to wear, eat, drink and overall: buy. The fans were waiting eagerly for a magazine cover or paparazzi photo to get a glimpse of the life of the once they worshiped and whose way of life they strived for. With the rise of social media, however, the distance between the average person and their favorite celebrity has significantly shortened through Facebook, Youtube, Instagram, TikTok. The inspiration to buy and possess a certain product has now grown into the multimillion-dollar business: influencer marketing.

Nowadays, the influencer marketing has been regulated in many countries and the influencers have clear responsibilities to disclose the commercial intent in their content – on theory, the audience must easily differentiate between a sponsored and non-sponsored post.

But is that so in practice?

In this blog post we will look into the legal regulations of influencers marketing on EU level, and we will point out some recent evaluation of the EU Commission on the problems and possible solution regarding the influencer marketing.

Background

In October 2024 the European Commission published the findings of the Digital Fairness Fitness Check relating to the current EU consumer framework. The Fitness Check aims to evaluate the consumers’ protection level in the context of the digital growth. Three core Directives were covered in the report: Unfair Commercial Practices Directive 2005/29/EC (UCPD); Consumer Rights Directive 2011/83/EU (CRD) and Unfair Contract Terms Directive 93/13/EEC (UCTD). The overall result show that the said Directives provide a degree of regulatory and consumer trust but in certain areas the consumers have struggled with their online experience.

 Based on an earlier stakeholder’s consultation, the Commission identified several problematic (amongst which are the unethical practices of the influencers): dark patterns; addictive designs and gaming; personalisation in advertising, ranking, recommendations, pricing/offers; contract cancellation and digital subscription; unfair contract terms; automated contracts and other.

How is the influencer marketing regulated in the current legislative framework?

It is safe to say that the European consumer is the best-protected in the world both online and offline – the European legislator gave the consumer numerous rights, information, ensured the enforcement and harmonization in all Member States. The European knows that the relationship between the consumer and the business is secured with protection and transparency. But what happens when the influencer sneaks into the traditional consumer-business line and actually becomes an important part not only for the promotion of products and services but part of the decision-making process from the consumer side? What if the influencer used unfair or misleading actions to promote harmful product?

The EU has already established rules which are fully applicable to the influencers and their marketing activities.

The Unfair Commercial Practices Directive (UCPD) prohibits unfair commercial practices at all stages of consumer transaction. Moreover, there are Guidelines to the UCPD with a section which is specifically targeted towards the influencer.  The Guidelines describe the influencer as „a natural person or virtual entity“ who could qualify as a „trader“ when they frequently carry out promotional activities towards consumers on their social media. The obligation to be clear about the commercial communication applies to all traders. Thus, on theory, the obligation to clearly and appropriately announce the commercial element in their content should be well enough secured. On theory, the influencers shouldn’t be able to mask commercial with editorial content as the Guidelines stipulate that the concept of editorial content „should be interpreted broadly, covering in some cases also content generated by the influencer or posted by them on social media platform“. Furthermore, theGuidelines clarify that the disclosure of the commercial elements should be clear and appropriate and individually labeled. Moreover, the Guidelines clarify that any form of consideration for endorsement (payment, discounts, percentage from affiliate links, free products, etc.) is considered a commercial element.

The influencers who engage in commercial partnerships are also subject to the transparency obligations stemming from the Audiovisual Media Service Directive. The Directive stipulates that all influencers in the EU must indicate in a clear and understandable way the commercial element in their content.

The newly established Digital Services Act introduced at least three different set of rules about liability, content moderation, advertising and disclosure that may specifically apply to the influencer marketing. The Digital Markets Act does not contain specific rules concerning influencer marketing, but it reaffirms the need for minimum industry standard levels of effectiveness relating to transparency obligations for profiling practices.

What have the Commission identified as potentially unethical practices of the influencers?

The biggest problem of all is the non-disclosure of commercial intent in influencer’s content – they do not mention about their commercial relationship with the advertised company, or if they do, it is not clear and understandable enough.

They often mask the commercial element as a part of their editorial content presenting it as a „review“ as a personal point of view making it hard to distinguish between a sponsored post and a personal recommendation.

Some influencers tend to artificially boost their likes and use of fake testimonials: to make a product or service appear more popular or effective than it actually is.

The influencers do not include crucial information such as side effects, additional cost, etc.

Manipulation of reviews and comments: remove negative opinions about a product or service the influencer is promoting.

Unclear use of affiliate links: non-disclosure of the commercial element in an affiliate link.

Irresponsible health or financial claims: making exaggerated or unsupported claims, especially about health products or financial investments, can not only be misleading but also potentially harmful

Why isn’t enough what we already have as a regulatory framework?

Evidently, the problem is not a missing legal framework but the question why all these unethical practices in the influencer marketing are so widespread arises. According to a BEUC report three instruments are missing:

  • different obligations and recommendations for influencers from one EU Member State to another, resulting in different level of consumer protection despite similar hidden advertising practices across the EU: different disclosure obligations, different interpretations of the legislation, fragmented enforcement
  • it is unclear how the disclosure of commercial content is made (label, hashtags, wording, etc.);
  • it is unclear how much of this disclosure is needed and in which context,
  • the applicable legislation does not clarify how the disclosure functionalities should be designed so the platforms develop their own tools which creates different functionalities on different platforms
  • and, who is responsible for it – the brands or the influencer agencies have no incentive to push the influencer to disclose the commercial element in their content.
  • it is unclear when such disclosure requirements should take place to timely inform the consumers.

What are the possible changes in the regulation in the influencer marketing?

Recommendations has been identified pertaining to the regulatory framework that aim to tackle the unethical practices in the influencer marketing:

  • A clear definition of „influencers“ and their responsibilities;
  • Introducing the concept of „user-generated concept“ to replace the „editorial content“;
  • Requiring the brands and influencer agencies to monitoring of the compliance of the rules;
  • Ban the promotion of harmful products and services such as tobacco, alcohol, aesthetic surgeries, financial services which expose consumers to high risk of financial loss and gambling.
  • An influencer based in a non-EU country promoting products to an EU audience shall fall under the scope of EU law.

What can we expect as a regulatory framework?

It is unclear how will the Commission will address the identified problems. However, the Commission demonstrated an intention to propose a new legislation as Digital Fairness Act the proposal of which we can expect in 2025.

Sources:

  • COMMISSION STAFF WORKING DOCUMENT FITNESS CHECK of EU consumer law on digital fairness {SEC(2024) 245 final} – {SWD(2024) 231 final}
  • BEUC: FROM INFLUENCE TO RESPONSIBILITY: Time to regulate influencer marketing, Ref: BEUC-X-2023-093 – 07/07/2023
  • Cappello M. (ed.), New actors and risks in online advertising, IRIS Special, European Audiovisual Observatory, Strasbourg, 2022
  • European Commission: Directorate-General for Communications Networks, Content and Technology, Armitage, C., Botton, N., Dejeu-Castang, L. and Lemoine, L., Study on the impact of recent developments in digital advertising on privacy, publishers and advertisers – Final report, Publications Office of the European Union, 2023, https://data.europa.eu/doi/10.2759/294673
  • Michaelsen, F., Collini, L. et. al., 2022, The impact of influencers on advertising and consumer protection in the Single Market, Publication for the committee on Internal Market and Consumer Protection (IMCO), Policy Department for Economic, Scientific and Quality of Life Policies, European Parliament, Luxembourg