Who: The European Commission and the Consumer Protection Cooperation Network
Where: European Union (EU)
When: 14 February 2024
Law stated as at: 8 March 2024
What happened:
The European Commission, and national consumer protection authorities from 22 Member States, Norway and Iceland have published the results of a screening sweep of 576 posts by influencers on the major social media platforms in the EU. The sweep focused on influencers in the fashion, lifestyle, beauty, food, travel, and fitness and sport sectors. The aim of the sweep was to understand whether influencers are compliantly disclosing the commercial content that they post online, in compliance with EU consumer law. It feeds into a broader programme of work under the EU’s Digital Fairness fitness check, which is evaluating the adequacy of current EU consumer protection laws on digital issues such as influencer marketing, dark patterns and personalisation practices.
The results of the sweep found that only 20% of the published posts disclosed when the content was advertising. When influencers did label their posts, the sweep found that a large number of these posts were still not labelled adequately. For example, only 40% of influencers made the disclosure available throughout the entire commercial communication and just 34% made the disclosure immediately visible without the user needing to take additional steps to find out that the content was advertising (for example, by scrolling down or clicking “read more”). Many influencers were also not utilising the integrated labels that platforms provide to disclose commercial content, such as “paid partnership”, and were instead applying their own wording.
The sweep also identified that the majority of the influencers surveyed were carrying out commercial activities without being registered as traders at national level. This is significant as we know that the Commission considers influencers, who are involved in regular commercial activity, to be traders for the purposes of EU consumer law. This also has potentially wide-reaching ramifications for content creators beyond advertising transparency obligations.
The relevant national consumer protection authorities are now going to contact the influencers in question to ensure that they follow the rules and enforcement action may be taken at local level as a result. Further, the Commission is analysing the outcome of the sweep in light of the new advertising transparency obligations that have been introduced under the Digital Services Act – in particular, the ability for influencers to declare whether the content they upload to online platforms contains commercial communications.
Why this matters:
The findings of this sweep are significant as it demonstrates that influencer marketing remains high on the European regulatory agenda, as the Commission continues to drive policy initiatives to achieve fairness and safety for consumers online. Its accompanying commentary on this sweep emphasises that influencers engaging in regular commercial activity should be viewed like any other direct-to-consumer business and, therefore, have a lot of rules to comply with.
