Who: European Economic and Social Committee (EESC)
Where: European Union
When: 3 July 2023
Law stated as at: 2 August 2023
On 3 July 2023, the EESC, a consultative body to the European Council (EC), released a report “Advertising through influencers and its impact on consumers” which contained EU-wide recommendations on the regulation of influencers and influencer marketing.
At its core, the report acknowledges that the existing patchwork of EU legislation (while not influencer specific) does cater for adequate protection of consumers against illegal influencer activities, but advocates for a set of “hard core” rules to be implemented in all Member States to ensure there is a harmonised approach across the EU, noting that Member States could then implement tougher measures on top of such rules if they wanted to.
In the report, the EESC calls for specific obligations for the administrators of the platforms on which they operate, and for content creators and/or influencers themselves, which include:
Administrators of platforms and social media networks
The EESC calls for social media networks and platforms to:
- be jointly and severally liable for illegal content published by content creators and influencers;
- remove and report (to a competent authority) any illegal online communications published by influencers; and
- require all influencers operating outside of the EU to identify someone legally liable for their activities within the EU, and ensure they hold adequate professional indemnity insurance in case of harm caused by unlawful conduct.
The EESC’s report also advocates for future regulation of influencers to cover the following areas:
- identification of commercial content – including clear identifiers and warnings (for example, by marking advertisements with the inclusion of “advertising”, “commercial communication” or “sponsored by”);
- sector-specific rules to protect minors and other vulnerable groups from sensitive content – for example, rules focusing on alcohol, gambling and betting and tobacco industries; and
- liability for breach of the rules – despite any joint and several liability of advertisers, platforms and social networks.
The report also considers that special attention should also be paid to the use of dark patterns, the improper or disparaging use of trade marks, unauthorised financial products, and identity theft or “fake influencers” (where the images of well-known people are used without their knowledge).
Why this matters:
At this stage, the EECS’s report simply seeks to highlight the various areas that could benefit from harmonised EU regulation, but it does:
- Signal what could be on the regulatory horizon – while it is unclear whether any of the EECS’s recommendations will materialise into new regulations, as it doesn’t have the power to force the EC to accept them, the EESC does enjoy a strong relationship with the EC and it is therefore common for EESC’s opinions to become part of subsequent laws.
- Express a desire to tackle emerging technologies in the advertising space – the report is forward thinking in a number of areas; in particular, on its consideration of regulating on machine-learning and artificial intelligence in the influencer space (alluding to deepfake influencers being used in potentially dangerous ways, such as to advertise particular financial investments and cryptocurrencies).
- Consider the obligations of platforms and social media networks in tackling unlawful content – thecall for platforms to be jointly and severally liable may mean, in practice, that the adoption of new or stricter versions of existing tools tackling unlawful content (for example, standardised disclosure) are mandated across platforms.