The European Commission (EC) and 22 EU member state national consumer protection authorities plus Norway and Iceland released the results of a screening or “sweep” of social media posts by so-called influencers on Thursday. It revealed that nearly all (97%) of the influencers surveyed were posting commercial content and that only one in five were systematically indicating that the content they were promoting was advertising-based or contained ad-related material.
The sweep was carried out to check whether influencers are disclosing their advertising activities as required by EU consumer law.
“Sweepstakes”
A review of the posts by 576 influencers published on major social media platforms found the following:
— 97% of the influencers surveyed promoted posts with commercial content, yet only 20% regularly identified this as advertising;
— 78% of the verified influencers were running a commercial activity; whereas only 36% were registered as traders at national level;
— 30% failed to provide company details on their posts – e.g. e-mail or postal address, company name or registration number;
— 38% avoided using labels clearly indicating commercial content like Instagram’s “paid partnership” toggle; instead, they opted for different wording, like “collaboration” (16%), “partnership” (15%) or a generic thanks to partner brands (11%,);
— 40% made their disclosures visible for the duration of the entire commercial communication;
— 34% made the disclosure instantly visible without need for additional steps like clicking “read more” or scrolling down;
— 40% endorsed their own products, services and/or brands, 60% of whom failed consistently to disclose that they were carrying advertising;
— 44% maintained their own websites, which most used for direct sales.
As a result of the sweep, 358 influencers were designated for follow-up investigation and will soon hear from the relevant national authorities that they should follow the rules in place.
Further enforcement action is envisaged as and if required, according to applicable national procedures. The EC is to analyse the results of the sweep in light of the legal obligations of the platforms under the DSA and will take the necessary enforcement action as appropriate.
Questionable marketing practices underscore the importance of having up-to-date enforceable legislation to ensure digital fairness for online consumers. The sweep results, therefore, will also be shared with the Digital Fairness Fitness Check on EU consumer law, which the EC launched in early 2022. The fitness check is a mechanism to ensure that the applicable EU laws are capable of providing adequate levels of protection against problems consumers may face in the digital markets or whether they need to be strengthened and adjustred.
The Fitness Check evaluates implementation of the Unfair Commercial Practices Directive, the Consumer Rights Directive and the Unfair Contract Terms Directive. It monitors and assesses their continuing capacity to handle such consumer protection issues as dark patterns, personalisation practices, influencer marketing, contract cancellations, marketing of virtual items, and/or the addictive use of digital products, for example.
Not all the EU member states participate in the sweep
Participating in the sweep were: Austria, Belgium, Cyprus, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden as well as Iceland and Norway. The Belgian Directorate General for Economic Inspection, given its extensive expertise in the field of influence marketing, played a significant role.
Of the influencers surveyed, 82 had over 1 million followers, 301 over 100,000 and 73 between 5,000 and 100,000. Multiple social media platforms were in play, with several influencers using more than one: 572 had posts on Instagram, 334 on TikTok, 224 on YouTube, 202 on Facebook, 82 on X (formerly Twitter), 52 on Snapchat, and 28 on Twitch.
The main sectors of activity they engaged in concentrated on fashion, lifestyle, beauty, food, travel and fitness/sport. Some 119 influencers were considered to be promoting unhealthy or hazardous products or activities, such as junk food, alcoholic beverages, medical or aesthetic treatments, gambling, or financial services such as crypto trading.
EU consumer law requires commercial communications to be transparent. Influencer posts should not mislead consumers with false or untruthful information on promoted products or services that come under the Unfair Commercial Practices Directive. Posted promotion of products or services that remunerate the influencer or offer other types of benefits have to be disclosed as advertising activity.
Influencers selling products or services directly are subject to the same legal obligations as online shops, and must provide consumers with legal guarantees or withdrawal rights as required by the Consumer Rights Directive.
On 17 February, the Digital Services Act (DSA) will enter into force across the whole of the EU and apply to all online platforms. This will require influencers uploading content to declare whether their content contains commercial communications. Additionally, influencers that qualify as traders need to provide information to ensure their traceability before they use anonline platform to promote or offer their products or services. Such obligations already apply to very large online platforms like Instagram, TikTok, Youtube,Facebook, X and Snapchat. As of 17 February, smaller platforms will have to respect these rules too.
Finally, under the Audiovisual and Media Services Directive, influencers that offer audiovisual content and meet the criteria to be considered audiovisual media service providers will have to comply with specific rules governing audiovisual commercial communications, which apply to contentious issues such as incitement to violence and hatred and harmful content for minors.
