Influencer Legal Hub

These resources are for anyone making money through creating social media content - this is often called being an influencer. Influencers are content creators who often advertise or sell products on a regular basis - which means that in the eyes of European law they are categorised as traders. Just like any businesses that interact with consumers, in the European Union, traders have a lot of rules to comply with. These rules may seem complicated at first, but that is where the Influencer Legal Hub comes in to help!

The Influencer Legal Hub is a collection of materials including video trainings, written legal briefs, overviews of important European laws and cases decided by the Court of Justice of the European Union, as well as links to other relevant national consumer authorities and further resources.

By following the video training and becoming familiar with the resources in the Influencer Legal Hub, influencers, agencies and brands (and also consumers) can become familiar with the European consumer protection standards that need to be applied in advertising, selling goods and providing services, as well as understand why it is important to protect their intellectual property (IP) and to respect the IP of others.

The information in the Influencer Legal Hub has been developed by the European Commission in collaboration with academic experts from Utrecht University in the Netherlands, and the University of Leeds in the UK for parts one to three, and the European Union Intellectual Property Office (EUIPO) for part four.

The information in the Influencer Legal Hub reflects the position of the Consumer Protection Cooperation Network which adopted the 5 Key Principles on Social Media Marketing Disclosures.

The video trainings are a series of seven videos focused on familiarising influencers, agencies, PR companies, brands, and even consumers, with the most relevant consumer and IP rules that apply to influencers in the European Union. The videos are structured along four different themes:

1. An introduction to consumer protection laws in the European Union
   This theme is meant to give an overview of the different consumer protection rules that are relevant for influencer activities. European consumer law has a rich history of over 50 years in the European Union, and the introduction is a brief dive into the laws that apply to disclosures on social media, and contracts with consumers, among others.
2. Influencers as advertisers
   European consumer law already states that advertising (including brand partnerships on social media, when you create content in exchange for products or services, or affiliate marketing) must be disclosed. These videos go into detail about when these rules apply to influencers (e.g. when they are ‘traders’), and how they can be best complied with.
3. Influencers as sellers
   When selling goods and/or services to consumers as traders (as defined in the second theme), influencers also need to comply with rules relating to the transparency they owe consumers (e.g. what information does a seller need to provide to a consumer about its identity and products/services), as well as additional rights (e.g. the right to return goods). These videos offer an overview of the most important rules that influencers need to keep in mind when selling directly to consumers.
4. Influencers and intellectual property (IP)
   Social media influencers’ creativity and innovation can be protected by IP rights, such as trade marks, designs and copyright. Likewise, influencers should respect the IP of others and not infringe it by obtaining commercial benefit from its non-authorised use. This would entail a breach of the law. It is also important that influencers do not mislead their audience by promoting counterfeit or pirated goods and services. The two videos include an overview of IP, focusing on copyright as well as trade marks and designs, which are the most relevant IP rights for influencers.

The videos focus on seven directives and regulations (which are specific instruments of European law), the European Union legislative framework for copyright, trade marks and designs, as well as case law from the Court of Justice of the European Union. This is not an exhaustive overview, but a selection of the most important laws and cases that are generally relevant to influencers.

The videos also emphasise the importance of product safety: influencers should check the products they sell or advertise on Safety Gate, a Commission website where product recalls are listed. Recalled products should not be sold or advertised, as they pose different types of dangers to the safety and health of consumers. 

This part of the training focuses on three themes: 

1. Important information on European consumer law, including examples of the rules that apply to influencers;
2. When an influencer becomes a 'trader' in the eyes of the European law;
3. An introduction to the other types of important rules that are relevant for influencer marketing, such as media law and advertising self-regulation.

This part of the training focuses on two themes:

• Best legal practices for each of the social media content monetisation business models you are using;
• Clear guidance on how to best disclose advertising on social media.

This part of the training focuses on two themes:

1. The responsibilities sellers of goods and providers of services have when their goods/services do not meet consumer expectation (these are legally called ‘non-conformity issues’);
2. The information and rights you need to bring to the attention of your audience who buys your products or services.

This part of the training provides an introduction to IP. Each video focuses on one of the two following themes.

1. Copyright: protecting original works, including music and audiovisual, related to the content created or used, monetising copyright and the importance of respecting the copyright of others.
    
2. Trade marks and designs: protecting the signs that identify the goods and services of one company through trade marks and the visual appearance of products through designs. Learning about trade mark and design registration and how to prevent infringement.

In the past year, more and more institutions involved in consumer protection and its enforcement have undertaken extensive market monitoring - which means proactively looking at the content published by influencers on social media platforms at a national and European level - and taken enforcement actions against those not complying with regulation. You may have seen some of these efforts - which we have described below - in the news. Consumer protection authorities engage in monitoring exercises in the hope that they will better understand the influencer industry and problems that consumers may have when engaging with social media advertising, goods and services promoted by influencers. It is very likely that the national authority where you live, in addition to the EU, will be finding ways to check that influencers are compliant with the law. 

Some of these actions include:

• In 2023, the French Consumer Protection Authority (DGCCRF) investigated the commercial practices of influencers. According to its findings, of the 60 influencers it has investigated since 2021, 6 out of 10 did not comply with regulations on advertising and consumer rights. As a consequence, the DGCCRF initiated several procedures and sanctions against the discovered consumer protection violations, such as injunctions asking influencers to post Instagram stories detailing their violations. 
• In Latvia, the Center for the Protection of Consumer Rights (PTAC) has undertaken several investigations. One investigation from 2023, which involved misleading information of food supplement products led to a €15,000 fine for an influencer. 
• In 2023, the Romanian Consumer Protection Authority (ANPC) undertook an extensive investigation of the 10 biggest Instagram influencers and found that those influencers consistently failed to disclose advertising.
• In Spain, the Ministry of Consumer Affairs (the General Sub-directorate of Inspection and Sanctioning Procedures - SGIPS) started an investigation into the main social media platforms in July 2023, to identify possible cases of covert advertising by influencers and, as a result, has sent sanction warnings to major communicators upon verifying that they have spread messages without relevant disclosures. As a preliminary result of this sweep of the platforms, SGIPS has detected that on average 77.75% of the investigated content did not comply with disclosure obligations.
• In 2022, the Irish Competition and Consumer Protection Commission (CCPC) published its Social Media Influencers report, which found that failure to label ads is widespread throughout the industry. 48.4% of the commercial content reviewed by the CCPC was not labelled as advertising in any way. Poor levels of labelling related to influencers’ marketing of their own brands was an area of particular concern identified in the research.
• In 2022, the Norwegian Consumer Authority (NCA) had a national sweep on social media platforms, targeting influencers on Instagram, TikTok and Snapchat, with the goal of uncovering hidden advertising. 47 influencers/advertisers received letters where the NCA concluded that they had breached the rules regarding hidden advertising. In October and November 2020, the NCA observed violations which activated the enforcement penalty (€80,000 for four Instagram-stories posts). This decision was appealed to the Market Council, which found that the commercial intent of all four Instagram-posts were not clear and that the trader was responsible. In 2023, the NCA, the Norwegian Board of Health Supervision and the Norwegian Medicines Agency had a national co-sweep which uncovered a large amount of illegal marketing from influencers working with clinics offering cosmetic procedures. 
• In 2021, the President of the Polish Office of Competition and Consumer Protection (UOKiK), Tomasz Chróstny, initiated an investigation to check whether influencers promote scams aimed at misleading consumers (eg. informing consumers about non-existent promotions, concealing important features of an advertised product, falsely exaggerating the product's properties or purpose, or offering things that are harmful or dangerous to health). 
• In Germany, complaints lodged by consumer associations led to a landmark judgment by the Federal Court of Justice in 2021, harmonising years of earlier judgments from lower instance courts, and emphasising the need to disclose hidden advertising on social media. 
• In 2021, the Swedish Consumer Agency conducted a national sweep on disclosure of commercial content in social media. In addition to individual influencers, business organisations linked to influencer marketing also received the final report of the sweep. The results showed that it was difficult, in many cases, to distinguish between personal views and commercial content on social media platforms. The sweep revealed suspected infringements on several Instagram posts where disclosures of commercial content were not clear enough. 
• In Denmark, in 2018, the Danish Consumer Ombudsman undertook a sweep, where it investigated influencers' disclosure of commercial intent on social media. The sweep included commercial posts on Instagram (including Insta Stories), Facebook, YouTube and blogs by 37 influencers. The Danish Consumer Ombudsman has also led four criminal cases regarding the failure to disclose commercial intent on social media, where influencers have received fines of DKK 15,000-50,000.
• The Italian Consumer Authority (AGCM) has been investigating hidden advertising by influencers since 2017, when it started sending moral suasion letters to influencers found to infringe consumer protection legislation. 

Market monitoring has also been extensively done by academic researchers. In scientific literature, the number of studies on influencer marketing has seen a massive increase in the past years. A lot of papers published in scientific journals in the past years confirm that advertising disclosures remain very scarce so far. Here are some examples below:

• In 2023, a team from Utrecht and Maastricht University found that across 12 years of activity, mega- and micro-Instagram influencers from Brazil, Germany, the Netherlands and the US only labelled 5.4% of their overall posts as advertising.
• In 2018, a team from Princeton University found that only 10% of affiliate marketing on YouTube and Pinterest was disclosed by US influencers.

Policy makers and consumer organisations have been equally interested in the rules applicable to this space, as well as their enforcement:

• The European Consumer Organisation (BEUC) published a position paper ‘From influence to responsibility - Time to regulate influencer marketing’ (2023) providing recommendations, both for a reform to further regulate influencer marketing and for better enforcement of existing EU legislation in this sector. 
• In 2022, the European Parliament published a commissioned study on ‘The impact of influencers on advertising and consumer protection in the Single Market’. This study provides information and analysis on the impact of influencers on advertising and consumer protection in the Internal Market, identifies best practices and makes recommendations for future action. 

There is evidence here that there are a number of issues in influencer marketing, and many influencers are not complying with the law. If you are an influencer that has found to not comply with regulation, this can put you at real risk of fines and even more severe consequences. The Influencer Hub aims to explain the laws that apply to influencers, and guide influencers in complying with these laws to protect their own audiences.
 

To learn more about the project, you can watch the launch webinar for the Influencer Legal Hub which brought relevant industry players and stakeholders around the table to disuss the context and main takeaways of this intiative.

Here are more resources that help to give more information on the topics described in the the video trainings:

• Some more relevant European consumer laws that apply to influencer marketing and that are featured in the video trainings;
• An overview of the case law from the Court of Justice of the European Union that is discussed in the video trainings;
• An overview of the most important research reports of the last years which describe in detail how European consumer law applies to influencer marketing and what compliance issues exist;
• Additional information on consumer protection authorities, media authorities and self-regulatory organisations in the European Union;
• External resources by self-regulatory organisations and university research groups. 

Selected European consumer rules (Directives and Regulations):

• Unfair Commercial Practices Directive;
• Unfair Contract Terms Directive; 
• Consumer Rights Directive;
• Digital Content Directive; 
• Consumer Sales Directive;
• Digital Services Act;
• General Product Safety Regulation.

Selected European Union IP rules (Directives and Regulations):

• Directive on the harmonisation of certain aspects of copyright and related rights in the information society;
• Directive on copyright and related rights in the Digital Single Market;
• Directive on the enforcement of intellectual property rights;
• Regulation on the European Union trade mark;
• Council Regulation on Community designs.

Case law:

• CJEU Case C-105/17 (Kamenova) – offering criteria to determine when an individual is a trader (e.g. VAT number, volume of sales, etc.);
• Case C-371/20 (Peek & Cloppenburg) – the concept of paying for an advertorial also includes exchanging copyright-free photos (payment is not only a transfer of money).

Research reports:

• Opinion of the European Economic and Social Council (July 2023); 
• BEUC position paper ‘From influence to responsibility - Time to regulate influencer marketing’ (July 2023);
• European Parliament study ‘The impact of influencers on advertising and consumer protection in the Single Market’ (February 2022);
• ERGA Report ‘Analysis and recommendations concerning the regulation of vloggers’ (2021). 

National consumer protection authorities:

• Each Member State has a consumer protection authority that applies European and national consumer protection rules in practice. More information can be found here: CPC Network.

Some Consumer Protection Authorities have published specific guidelines for influencers and content creators:

• Belgium: ‘Are you a content creator or influencer? Then you must comply with these obligations regarding commercial communication’;
• Denmark: ‘Good advice for influencers about hidden advertising’;
• Finland: ‘Influencer marketing in social media’
• Germany: ‘Influencer marketing: Updated guidelines’; ‘Influencer or not? When a post on social media is advertising’; 
• Hungary: ‘Tájékoztató az influenszer marketingről’;
• Ireland: ‘Guidance on influencer advertising and marketing’
• Latvia: ‘Social Media and Influencer Marketing’;
• Lithuania: ‘Reklamos Žymėjimo Socialinėje Erdvėje Gairių Atmintinė’;  
• Norway: ‘Body pressure on social media’; ‘Labeling alterated marketing images and videos’; ‘Marketing on social media’; ‘Pyramid scheme’; ‘Social media’; ‘Marketing of cosmetic procedures on social media’; ‘Marketing towards children’; ‘The use of contest as marketing on social media’; ‘Labeling retouched advertisement’; ‘Marketing in podcast’;
• Poland: ‘Recommendations of the President of the Office of Competition and Consumer Protection pertaining to the tagging of advertising content by influencers on social media’; 
• Portugal: 'Guia informativo sobre regras e boas praticas na comunicação comercial no meio digital'
• Sweden: ‘Marketing in social media’; ‘Advertising in social media, what applies?; ‘Guidance on social media marketing’.

Other national authorities: 

• Each Member State has a media authority, tasked with applying European and national media law in practice. An overview of these authorities is managed by the European Regulators Group for Audiovisual Media Services.
• The same applies to taxation and customs authorities. More information about the different national tax websites can be found here.

Self-regulatory organisations:

• Apart from national authorities, there are also advertising self-regulatory organisations making voluntary standards that traders can follow. Such organisations are members of the European Advertising Standards Alliance, focused on promoting responsible advertising by providing detailed guidance on how to go about advertising self-regulation for the benefit of consumers and businesses.

Industry associations:

• The European Association of Communication Agencies is the voice of Europe’s communications agencies and associations, promoting the economic and social contribution of commercial communications to society.

Academic resources:

• HUMANads is a European Research Council Starting Grant hosted at Utrecht University. It is the largest research project on influencer marketing in the European Union. On the project website, you can find more information about:
• more scientific studies about influencer marketing;
• judgments from national courts in the European Union, the United States and other jurisdictions;
• information about Chambers of Commerce in the Member States;
• past and future events explaining the legal rules applicable to influencers.