Influence marketing: the keys to legal compliance in Europe

1. Applicable EU Directives

Influencer marketing in Europe is mainly framed by two key directives: Directive 2000/31/EC on electronic commerce and Directive (EU) 2018/1808 on audiovisual media services. These texts require influencers to explicitly disclose their commercial partnerships and the company for which their communication is made. This transparency requirement applies across all EU Member States.

In addition, two new pieces of legislation, the Digital Services Act (DSA) and the Digital Markets Act (DMA), have been passed to overhaul digital business practices within the EU. These laws aim to increase accountability and fairness online, placing additional obligations on influencers and platforms.
 

2. Influencer Obligations

As content creators, influencers must now assume greater responsibility for the content they publish online. They must ensure that their content is appropriate, non-misleading, and compliant with current legislation. Commercial partnerships must be clearly indicated with terms such as "advertisement" or "commercial collaboration".

3. The Role of Online Platforms

Social networking platforms that host influencer content are also subject to increased obligations. They must be clearer and more transparent about how their content recommendation algorithms work. In addition, they must provide mechanisms for users to report unlawful content and then respond quickly to such reports. Platforms are also required to monitor publications and delete non-compliant content, or even suspend the accounts of offending influencers.

4. Towards EU Harmonization

Despite these various legislative texts, there is as yet no unified European regulation specifically dedicated to influencer marketing. The rules therefore vary from country to country, creating a fragmented legal landscape. This complicates the task of influencers and advertisers who have to navigate between different domestic legislations.

Harmonization of rules at European level is therefore essential to ensure uniform application of obligations and sanctions. Such harmonization would both simplify procedures for influence marketing players and ensure better consumer protection across the EU.
 

1. The Influence Act of 9 June 2023

France has taken a significant lead in regulating influencer marketing, with the adoption of the Influence Act on 9 June 2023. This legislation was designed to address the specific challenges posed by this new form of commercial communication, establishing clear and binding rules for influencers, their agents, and advertisers.

Background and adoption of the Act

The Influence Act was adopted against a backdrop of rapid growth in influence marketing, where commercial practices often lacked transparency and fairness. The law aims to protect consumers, especially minors, and ensure fair competition between market players.

Defining influencers and influencer agents

The Act provides a precise definition of “influencer” and “influencer agent”, clearly specifying their respective roles and responsibilities. 
The term “influencers” is defined as "individuals or legal entities who, for consideration, use their notoriety with their audience to communicate online content to the public aimed at directly or indirectly promoting goods, services or any cause whatsoever".

The activity of “influencer agents” consists of: "representing, for consideration, individuals or legal entities engaged in the activity of online influence marketing  with individuals or legal entities and, where applicable, their authorized representatives, for the purpose of promoting, for consideration, goods, services or any cause whatsoever".

The Act also creates the status of “child influencer”, providing for the protection of both children and their income, by reference to the law of 19 October 2020 aimed at regulating the commercial exploitation of the image of children under sixteen on online platforms.
 

2. Main Provisions of the French Influence Act

• Mandatory written contracts

Contracts between influencers, agents and advertisers must be memorialized in writing. These contracts must include specific clauses on their tasks, remuneration and legal obligations. As no decree has yet been published setting the threshold below which they are not mandatory, these contracts are compulsory, whatever the collaboration, community or remuneration involved.

• Transparency of sponsored content

Influencers are required to clearly label sponsored content with terms such as "advertisement" or "commercial collaboration". Content altered by filters or artificial intelligence tools must be accompanied by labels such as "edited image" or "virtual image".

• Bans on the promotion of certain products

The promotion of certain products is prohibited, including those related to cosmetic surgery, risky financial products (such as cryptocurrencies), and gambling. Advertisements targeting minors, notably for nicotine products or sports advice, are strictly regulated.

3. Liability and Penalties

• Joint and several liability

Influencers, their agents, and advertisers can be held jointly and severally liable in the event of breaches or harm caused to consumers. This joint and several liability is designed to ensure that all players involved in influencer marketing comply with the established rules.

• Types of applicable penalties

Violations of the Influence Act can result in fines of up to €300,000 and prison sentences. Penalties can also include temporary bans and compliance obligations. For example, an influencer who fails to comply with the new rules could be fined and banned from promoting products for a specified period.

4. Order of 6 November 2024: Between Practical Fine-Tuning and EU Compliance

• Rewriting of provisions on the disclosure of commercial intent

Order no. 2024-978 of 6 November 2024 has fine-tuned the Influence Act to bring it into line with EU directives, in particular Directive 2005/29/EC on unfair commercial practices. The provisions on disclosing commercial intent have been rewritten to ensure that consumers are clearly informed when content is sponsored.

• Clarification of applicable penalties

The wording of the various applicable sanctions has been clarified to ensure a better understanding and enforcement of the rules. Sanctions may include fines, temporary bans on engaging in promotional activity, and compliance obligations.

• More flexible rules on disclosing edited and virtual images

Consumer disclosure requirements for edited and virtual images have been made more flexible, to ensure that they are proportionate and that the rule is sustainable. This takes into account the rapid evolution of technology and legal standards, notably the European regulation on artificial intelligence (AI).

• Adjustment to Article 9 on territoriality

Article 9 has been adjusted to specify that it applies to persons engaged in an influence marketing activity targeting the French public. This article also sets out the requirement to take out professional liability insurance in the EU for persons established outside the European Economic Area and Switzerland.

1. Germany: Dynamic Regulation through Case Law 

In Germany, although there is no specific legislation dedicated to influencers, influencer marketing is governed by the statutory provisions relating to competition, media, data protection, trademarks, and copyrights. Case law, particularly that of the Federal Court (BGH), plays a crucial role in shaping and clarifying the applicable rules, thus offering a dynamic regulation attuned to sector developments.

Transparency and data protection

One of the key principles in Germany is the transparency obligation: all advertising must be clearly identified as such, distinct from editorial content. When an influencer receives consideration, whether financial or in kind, he or she must explicitly indicate the promotional nature of the publication, using terms such as "Anzeige" or "Werbung" (i.e., “advert” or “advertisement”). In addition, influencers must respect the rights of creators, avoid any confusion with protected brands, and obtain subscribers’ explicit consent to process their data, while guaranteeing their security and privacy.

Anticipating technological change

Germany has also taken the lead in anticipating certain major technological developments, such as the emergence of virtual influencers, or "robot influencers", by gradually incorporating these new realities into its legal framework.

2. Austria: A Code of Ethics to Regulate Practices

In Austria, although there is no specific legislation concerning influencers, their activity is governed by several legal frameworks, including media, e-commerce, and competition laws. The Austrian Advertising Industry has drawn up a Code of Ethics to regulate the activities of influencers, requiring in particular that paid advertising content be labeled to ensure maximum transparency for consumers.

Protection of minors

Austria places special emphasis on the protection of minors in the field of advertising. The Media Services Act imposes strict restrictions to prevent advertisements from taking advantage of the inexperience of children, who can only be involved in advertising activities when there is a legitimate justification.

3. Belgium: A Draft Law Inspired by France  

In Belgium, a draft law dated 15 September 2023, inspired by the French Influence Act, has been introduced to regulate digital influence marketing. The bill aims to protect subscribers and consumers by guaranteeing more transparent commercial practices, while providing for sanctions in the event of non-compliance.

Prohibitions and child protection

Like the French Influence Act, the Belgian bill bans the advertising of certain sensitive activities, such as cosmetic surgery, high-risk financial products, dangerous medical or drug treatments, tobacco products and gambling. Children also benefit from enhanced protection, notably through the introduction of the right to be forgotten, enabling them to delete their personal data from digital platforms.

4. Spain: A Selective and Rigorous Framework

On 1 May 2024, Spain adopted Royal Decree 444/2024, aimed at strengthening the regulation of online content, particularly in the field of influence marketing and digital advertising. The decree applies to creators with annual sales of €300,000 or more, with one million followers on a single video-sharing platform or two million for their entire business, and who have shared or published 24 or more videos during the year.

Specific prohibitions and protection of minors

The creators concerned must register with the Registro Estatal de Prestadores Audiovisuales and ensure that advertising content is clearly identified. Certain advertisements are strictly prohibited, such as those for tobacco, alcohol, medicines, or other sensitive products. The decree also focuses on the protection of minors and the public against harmful or inappropriate content.

5. Italy: Best Practices and Reinforced Supervision

In Italy, although there is no specific law governing influencer marketing, it is regulated by the Digital Chart, which sets out best practices for transparent and ethical campaigns, and by the Self-Regulation Code for Commercial Communication, which defines the rules of conduct required for transparent and respectful commercial communication.

Strengthening of legal provisions

Italy has opted for a strict framework for the commercial and advertising activity of influencers, under the Audiovisual Media Act, applicable to influencers with at least one million subscribers, 2% of whom interact with their publications. This Act lays down strict requirements and penalties, the highest of which can range from €30,000 to €600,000 in the event of non-compliance with provisions concerning the protection of minors.

1. Transparency and Consumer Protection

Similarities

Transparency is a fundamental principle shared by all European regulations on influencer marketing. Sponsored content must be clearly identified as such, to ensure that consumers are informed of the commercial nature of the publications. This transparency requirement is reflected in the obligation to use explicit terms such as "advertisement", "commercial collaboration" or their equivalents in the various national languages.

Protecting consumers, and especially minors, is also a shared priority. The regulations impose restrictions on content that targets minors, to prevent any exploitation of their inexperience and guarantee their safety online. For example, the promotion of nicotine products, gambling and certain risky financial products is strictly regulated or prohibited.
 

Differences 

Despite these common traits, the ways in which these principles are applied vary from country to country. In France, the Influence Act imposes mandatory written contracts for all collaborations between influencers, agents, and advertisers, including specific clauses on tasks, remuneration and legal obligations. In other European countries, on the other hand, while written contracts are common and recommended, they are not always required by law.

What's more, the notoriety and remuneration thresholds triggering application of the obligations may differ. For example, in Spain, Royal Decree 444/2024 applies to creators with annual sales of €300,000 or more, with one million followers on a single video-sharing platform, or two million for their entire business.

2. Protection of Minors

Similarities

The protection of minors is a crucial aspect of influencer marketing regulations in all European countries. Content aimed at minors is subject to specific restrictions to prevent any exploitation of their vulnerability. Advertising for products such as electronic cigarettes, gambling and certain financial products is generally prohibited or strictly controlled.

Differences

Approaches vary, however, in terms of rigor and implementation. In France, the Influence Act includes specific provisions to protect child influencers and their income, imposing obligations on their parents and the advertisers collaborating with them. In Belgium, the draft law introduces a right to be forgotten for children, enabling them to delete their personal data from digital platforms.

3. Liability and Penalties

Similarities

European regulations provide for penalties for breaches of transparency and consumer protection rules. Fines, temporary bans and compliance obligations are common measures used to ensure compliance.

Differences

The severity of sanctions and liability mechanisms can vary. In France, the joint and several liability of influencers, their agents and advertisers is a key element of the Influence Act, making it possible to hold all players involved jointly liable in the event of breaches. In Italy, penalties can range from €30,000 to €600,000 for non-compliance with provisions on the protection of minors.

4. National Specificities

France

France stands out for its strict approach, aimed at making all those involved in influencer marketing accountable. The Influence Act imposes legal obligations to memorialize collaborations in written contracts, with no minimum notoriety or remuneration thresholds. It also includes specific rules to protect child influencers and their income. For example, contracts must include specific clauses on tasks, remuneration and legal obligations. Failure to comply can result in a fine of up to €300,000 and imprisonment.

Germany

Germany has, for the time being, adopted a more liberal approach, where the market regulates itself without any specific legislative intervention. Case law plays a crucial role in adapting the rules to sector developments, particularly in terms of transparency and data protection. Influencers must explicitly disclose the promotional nature of their publications, using terms such as "Anzeige" or "Werbung" (i.e., “advert” or “advertisement”). Germany is also anticipating technological developments, such as the emergence of virtual influencers, by incorporating these new realities into its legal framework.

Spain

Spain favors a selective framework, reserved for influencers who meet precise criteria in terms of sales and number of followers. Royal Decree 444/2024 imposes strict obligations in terms of transparency and protection of minors, while targeting the most influential creators. The creators concerned must register with the Registro Estatal de Prestadores Audiovisuales and ensure that advertising content is clearly identified. Certain advertisements, such as for tobacco, alcohol, and medicines, are strictly prohibited.

Italy

Italy, while having established good practices through the Digital Chart and the Code of Self-Regulation for Commercial Communication, has strengthened its statutory provisions in the wake of media scandals. Severe sanctions are aimed at ensuring transparent and respectful commercial communication. For example, influencers with at least one million subscribers, 2% of whom interact with their publications, must comply with strict requirements. Penalties can range from €30,000 to €600,000 for non-compliance with provisions concerning the protection of minors.

1. The Need for Harmonization

Influencer marketing, by its very nature, transcends national borders, with influencers and content reaching international audiences. This transnational dimension poses significant regulatory challenges, as influencers and advertisers must comply with varied and sometimes contradictory legislation in different countries. Harmonization of rules at European level is therefore essential to guarantee uniform application of obligations and sanctions, streamlining the process for influence marketing players and ensuring better consumer protection across the EU.

Current difficulties

At present, differences in national legislation can make it difficult, if not impossible, to comply with all applicable regulations simultaneously. For example, content published by an influencer may comply with the laws of one country but infringe those of another. This legal fragmentation creates uncertainty for influencers and advertisers, who have to navigate a complex and constantly changing regulatory landscape.

2. The Importance of a Unified Framework

A unified regulatory framework at European level would standardize obligations and sanctions, offering greater clarity and predictability for influence marketing players. It would also facilitate cooperation between national regulatory authorities, enabling more consistent and effective enforcement of the rules.

Benefits for industry players

For influencers and advertisers, a harmonized framework would reduce compliance costs and the legal risks associated with the diversity of national legislations. It would also encourage fairer competition, by eliminating regulatory disparities that can give some players an advantage over others.

Enhanced consumer protection

For consumers, harmonized rules would guarantee a uniform level of protection across the EU, regardless of the origin of the content they consume. This would boost confidence in influencer marketing and help prevent misleading or abusive commercial practices.

3. Recommendations for Harmonization

Simplification and harmonization of mandatory labels

One of the first steps towards effective harmonization would be to simplify and harmonize the mandatory labels required to ensure that commercial content is transparently identified. To guarantee clear and uniform understanding for consumers across the EU, the required labels should not vary from one country to another.

Technical requirements for platforms

The technical requirements imposed on social networking platforms should also be harmonized. This includes the transparency of recommendation algorithms, mechanisms for reporting illegal content, and procedures for removing non-compliant content. A coordinated approach would reinforce platform accountability and ensure more rigorous application of the rules.

Cooperation and coordination between national authorities

The establishment of cooperation and coordination mechanisms between national regulatory authorities is crucial to successful harmonization. This could include the creation of a European regulatory body dedicated to influence marketing, charged with overseeing the application of harmonized rules and facilitating the exchange of information between Member States.

Conclusion

Harmonizing influence marketing rules at European level is not only desirable, but necessary to meet the challenges posed by this transnational practice. By simplifying obligations and standardizing sanctions, a unified regulatory framework would offer greater clarity and predictability for industry players, while guaranteeing enhanced consumer protection. Mathilde Ponchel and Nadège Riederer-Lemarchand, partners at FIDAL, continue to advocate for such harmonization, while offering their expertise to advertisers and communications agencies to help them navigate this complex legal landscape.