Will the new EU Digital Security Act impact the regulation of influencer marketing?

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The EU defines the term influencer as “a creator of content with a commercial intent , who builds relationships based on trust and authenticity with his or her audience (mainly on social media platforms) and engages online with commercial actors through different business models for monetisation purposes.”

While there is no specific EU legislation for influencer marketing, creators who promote products and services within the framework of commercial partnerships are subject to a range of EU laws on consumer protection and unfair commercial practices.

In addition, the recently enacted Digital Services Act (DSA) will place greater responsibility on influencers to ensure that online content is appropriate, legal and not misleading.

Arguably one of the most ambitious digital surveillance laws globally to date, the DSA creates a link between its provisions and other national or European regulations governing online content. For influencers monetizing content , it establishes a new definition of illegal content that is particularly relevant to their activities.

According to the DSA, illegal content “is any information or activity, including the sale of products or the provision of services, that does not comply with the terms laid down in Union or Member State law, regardless of its precise subject matter or nature.”

This means that failure to comply with national and EU laws on advertising content could render influencers’ content illegal under the DSA and subject to its terms, provisions and penalties.

Raising awareness on best practices for responsible influence
In a rapidly growing and professionalised sector, with new players entering the market every day, regulatory bodies and other industry players have recognised the urgent need to raise awareness among influencers and brands about their obligations to consumers and the law.

Read also: Excess versus responsibility: responsible influence is on the move

“ Part of the reason we’ve updated this best practice guide is because there are a lot of new marketing practices emerging within influencer marketing, new social media. We wanted to reflect the detective work that SROs do to make sure influencer content is marketing, and provide a bit more guidance on how they go about their work when it comes to handling complaints and issues with influencers ,” says AESA’s Manda.

To this end, the AESA is carefully considering whether it needs to adopt a model of supervision and education similar to that established in France by the ARPP. To date, more than 450 content creators have completed the ARPP Responsible Influencer Certificate , and several French brands – including multinationals L'Oréal and Club Med – have made obtaining the certificate r&d directors email database mandatory for all collaborations with influencers.

" This is something we are discussing internally. The advantage that everyone sees in the observatory and certification process is that it feeds the question of trust that the self-regulation system provides to industry, companies, policy makers and consumers ," says Manda.

What are the regulations on influencer marketing in your country?
The European Union does not have specific legislation regulating influencer marketing . However, the EU's e-Commerce Directive and Audiovisual Media Services Directive oblige all influencers in Member States to mention commercial collaborations in communications, including the name of the advertiser.

Meanwhile, two major pieces of EU legislation enacted in November 2022 – the Digital Services Act and the Digital Markets Act – introduce sweeping new terms and requirements for monitoring business practices and digital service providers in the sector. Under the new laws, influencers will have to accept greater responsibility for their online content and ensure it is appropriate, not misleading or unlawful.

Influencer marketing is generally regulated in Europe by applicable national advertising and consumer protection laws, and self-regulatory authorities are responsible for resolving complaints and disputes about influencer content on social media.

In Europe, there is a consensus: influencer marketing content that has been paid