European Commission and consumer authorities investigate online influencers

February 20, 2024

Only 20% of influencers disclose that their content is advertising.

The European Commission and national consumer protection authorities have issued the results of a sweep of social media posts by 572 influencers. The sweep found that 97% posted commercial content but only one in five systematically indicated that their content was advertising. The objective of the sweep was to verify whether influencers disclose their advertising activities as required by EU consumer law.

The main sectors of activity concerned were fashion, lifestyle, beauty, food, travel and fitness/sport. According to the Commission, 119 influencers were promoting unhealthy or hazardous activities, such as junk food, alcoholic beverages, medical or aesthetic treatments, gambling, or financial services such as crypto trading.

EU consumer law provides that commercial communications must be transparent. In their posts, influencers should not mislead consumers with false or untruthful information on the promoted products or services that fall under the Unfair Commercial Practices Directive. Any promotion of the products or services of a brand in a post that earns its influencer revenues or other types of benefits must be disclosed as an advertising activity.

In addition, influencers who sell products or services for their own account have the same legal obligations as online shops, such as providing consumers with legal guarantees or withdrawal rights as required by the Consumer Rights Directive.

On 17 February 2024, the Digital Services Act came into force in the EU. Among other things, the DSA requires influencers uploading content to declare whether such content contains commercial communications. In addition, influencers qualifying as traders now need to provide information to ensure their traceability before they use an online platform to promote or offer their products or services. These obligations already apply to the very large online platforms (such as Instagram, TikTok, Youtube, Facebook, X and Snapchat). Smaller platforms must comply from 17 February.

Finally, under the Audiovisual and Media Services Directive, influencers offering audiovisual content and meeting the criteria to be considered audiovisual media service providers need to comply with specific rules on audiovisual commercial communications, incitement to violence and hatred and harmful content for minors. For example, audiovisual commercial communications of influencers need to be readily recognisable and must not be prejudicial to health or safety; influencers’ content must not exploit minors’ inexperience or credulity, and must not unreasonably show minors in dangerous situations.

Findings of the sweep

  • 97% of published posts included commercial content, but only 20% systematically disclosed this as advertising;
  • 78% of the verified influencers were exercising a commercial activity, but only 36% were registered as traders at national level;
  • 30% did not provide any company details on their posts, such as e-mail address, company name, postal address or registration number;
  • 38% of them did not use the platform labels that serve to disclose commercial content, such as the “paid partnership” toggle on Instagram.  They used different wording, such as “collaboration” (16%), “partnership” (15%) or generic “thanks to the partner brand” (11%,);
  • 40% made the disclosure visible during the entire commercial communication. 34% of influencers’ profiles made the disclosure immediately visible without needing additional steps, such as by clicking on “read more” or by scrolling down;
  • 40% of influencers endorsed their own products, services, or brands. 60% of those did not consistently, or at all, disclose advertising; and
  • 44% influencers had their own websites, from which a majority were able to sell directly.

Next steps

As a result of the sweep, there will be more investigation of 358 influencers. The Commission will 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. The results of the sweep will also feed into the Digital fairness fitness check of EU consumer law, which was launched in Spring 2022 by the European Commission. It covers the Unfair Commercial Practices Directive, the Consumer Rights Directive and the Unfair Contract Terms Directive and is considering if they effectively deal with consumer protection issues such as dark patterns, personalisation practices, influencer marketing, contract cancellations, marketing of virtual items, or the addictive use of digital products, amongst others.