§4.2.6 Influencer marketing

Influencer marketing involves the promotion of specific brands or products through influencers using the positive impact that influencers are likely to have on consumer perceptions. An influencer is generally described as a natural person or virtual entity (356) who has a greater than average reach in a relevant platform. Compared to most other forms of online advertising, influencer marketing bears even fewer characteristics that make it possible for consumers to identify the commercial nature of the content. Even if the influencer uses disclaimers to highlight the presence of commercial communications, the average consumer, particularly children and young people, could assume that the content is presented at least partly as a personal, non-commercial endorsement rather than a direct and clearly identifiable advertisement. For the purposes of the UCPD, an influencer would qualify as a ‘trader’ or, alternatively, as person ‘acting in the name of or on behalf of a trader’. Persons that frequently carry out promotional activities towards consumers on their social media accounts are likely to qualify as ‘traders’, regardless of the size of their following. See section 2.2 on the notion of ‘trader’ for examples of factors that must be taken into account in this determination. The obligations to be clear about the commercial communication apply to traders regardless of whether they are the suppliers of the products (357). As with other forms of hidden marketing, the failure to clearly declare the commercial element in an influencer’s content or practice could amount to a misleading practice under Articles 6 and 7. The endorsements by the influencer cover various practices, including paid posts, affiliate content (e.g. influencer shares a discount code or link to their audience for a commission fee), retweets or tagging the trader/brand. According to Article 7(2) all commercial communications must be clearly indicated as such, unless already apparent from the context. Furthermore, in addition to the application of Articles 6 and 7 that apply in all cases of influencer marketing, point No 11 of Annex I prohibits practices which do not make it clear that a trader has paid for the promotion of a product in editorial content. 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 platforms. In the Peek & Cloppenburg case, the Court confirmed that point No 11 should be interepreted in a manner that reflects the reality of journalistic and advertising practice (358). The case concerned the interpretation of the concept of ‘payment’, which is further explained below. In the context of ensuring the effectiveness of the prohibition, the Court highlighted the relevance of ‘“covert” advertising on the internet through the dissemination of comments on social networks, forums or blogs, which appear to come from consumers themselves, whereas in fact they are advertising or commercial messages, directly or indirectly created or paid for by economic operators, and insists on the harmful effects of such practices on consumer confidence (…)’ (359). Finally, the lack of adequate disclosure by the influencer concerned also increases the risk of breaching point No 22 of Annex I, which prohibits falsely representing oneself as a consumer. The disclosure of the commercial element must be clear and appropriate, taking into account the medium in which the marketing takes place, including the context, placement, timing, duration, language, target audience and other aspects. The disclosure must be sufficiently salient to adequately inform the average or vulnerable consumer that receives the content. For example, the disclosure cannot be considered adequate in case the information concerning the commercial communication is not displayed prominently (e.g. hashtags at the end of a lengthy disclaimer; merely tagging a trader) or requires the consumer to take additional steps (e.g. click on ‘read more’) (360). It is also necessary to individually label each commercial communication as it reaches consumers, even if the influencer is engaged in a broader endorsement arrangement with a trader/brand. The commercial element is considered to be present whenever the influencer receives any form of consideration for the endorsement, including in case of payment, discounts, partnership arrangements, percentage from affiliate links, free products (including unsolicited gifts), trips or event invitations etc. The presence of a contract and monetary payment is not necessary to trigger the application of these rules. In the Peek & Cloppenburg case, the Court confirmed that a trader has ‘paid for’ editorial content also in case of non-monetary payment. The Court considered that there must be ‘consideration with an asset value’ and a definite link between the payment by that trader and that content. However, the specific form of payment has no bearing from the point of view of consumer protection. For example, consideration was found to be present when the trader makes available, free of charge, images protected by copyright on which are visible the commercial premises and products which it offers for sale. The Court also noted that there is no requirement for a minimum amount of payment or the proportion of that payment in the total cost of the advertising campaign concerned (361). Depending on the circumstances of the case, the breach could be attributed both to the influencer or to the trader/brand that has engaged the influencer and benefits from the endorsement. The presence of editorial control by the trader is not necessary to trigger the application of these rules but could serve as a factor in the determination of its liability. The trader/brand is liable for the breaches of the above-mentioned provisions and in particular the requirement of exercising professional diligence under Article 5. Subject to the assessment of the circumstances of the case, such liability is unlikely to be present in the scenario where an influencer does not have any connections to the trader/brand (i.e. misleadingly pretends to act on behalf of the trader). The influencer would be liable for its own obligations under the UCPD, provided that it qualifies as a ‘trader’, as explained earlier. For example: A trader re-posted social media posts by influencers that promoted their products in return for consideration but failed to adequately label their posts as commercial communications. A national court held the trader liable for not taking necessary measures to ensure compliance with consumer law, such as ensuring transparency, educating influencers and having control mechanisms to bring infringements to an end (362). In case the influencer is endorsing its own products or business, the same rules will apply. The commercial intent of the communication must always be declared in such cases, in particular in light of point No 22 of Annex I, which prohibits falsely claiming or creating the impression that a trader is not acting for the purposes of his trade or falsely representing oneself as a consumer. There is a need for adequate disclosure also in case the influencers endorse brands or products that are visibly linked to them, e.g. by bearing their name or face. For example: An influencer promoted on Instagram the products of a company where she was the CEO, main shareholder and sole board member. It was found that the relevant Instagram posts were misleading, as the commercial intent was unclear to the average consumer. One post, promoting fish oil, made indirect claims about strengthening immune function and therefore protecting against COVID-19. In absence of evidence for such claims, this post was found to be both misleading and aggressive (363). Moreover, given that the relationship that the influencer builds with its audience is often based on trust and a personal connection, their behaviour could in some cases amount to an aggressive commercial practice through the use of undue influence, prohibited by Articles 8-9. This is particularly relevant when the main target audience of an influencer includes vulnerable consumers, such as children and young people. Furthermore, point No 28 of Annex I prohibits direct exhortations towards children in all circumstances. In addition to the obligations of influencers and brands, the online platform that is used for the promotional activities is subject to its own obligations of professional diligence under the UCPD, as discussed in previous sections. This includes the obligation to take appropriate measures to enable third party traders to comply with their obligations under EU law, e.g. to provide specific and appropriate disclosure tools in the platform’s interface (364).

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07