sec_4_2_6__para__3 — COMMISSION NOTICE – Guidance on the interpretation and application of Directive…

sec_4_2_6para3

COMMISSION NOTICE – Guidance on the interpretation and application of Directive 2005/29/EC of the European Parliament and of the Council concerning unfair business-to-consumer commercial practices in the internal market · European Union

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.

← sec_4_2_6__para__2 · All articles · sec_4_2_6__para__4 →

Source: EUR-Lex (Cellar) · retrieved 2026-09-25 · Text as adopted (Official Journal); later amendments are not incorporated in this text.