New EU recommendations for influencer marketing reform: what do they mean for marketing teams?

The Council of the European Union has published a set of recommendations as to how the European Commission and EU Member States should support influencers to encourage the creation of content that has a positive impact. 

The Council recognises that influencers have a huge impact on the content and information that the public consume, and stresses the EU’s role in boosting support for influencers to produce lawful, socially responsible content. It recommends that this support should also come from advertisers employing influencers in their marketing strategy, to advertise their products. The Council suggests that, by enabling influencers to build their media literacy and increase awareness and appreciation of the advertising rules that govern their content, this will encourage content that has a positive impact.

While the Council’s recommendations will not directly affect UK-based influencers (being outside the EU) the recommendations are still important for UK influencers and the marketing agencies and advertisers who engage them. Firstly, influencers who target EU consumers will fall directly within the scope of the recommendations. Secondly, EU developments in advertising and consumer law often indicate a “direction of travel” that other countries, including the UK, may follow.

The Recommendations

Among the Council’s key recommendations are the following:

• To encourage Member States to engage with influencers. Influencers should have a platform which highlights their role in the media ecosystem and draws out relevant legislation and regulatory guidance that applies when influencers are producing and posting content – for example, notifying consumers when influencer content is paid-for marketing.
• For the Commission and Member States to develop policies and regulatory instruments, that will foster responsible behaviour from influencers, including a possible ethical code. Advertisers and influencers will need to be especially alive to the introduction of an ethical code as non-compliance would likely be damaging to their reputation.
• Calls on Member States and the Commission to ensure influencers are involved in policy development, and for the Commission to support influencers through EU-wide policy. This will enable advertisers and influencers to engage with policy makers to help shape a policy which is directly related to their profession and industry.
• To consider the growing use of Artificial Intelligence by influencers. Under this recommendation is the need to ensure influencer compliance with the EU’s AI Act, to disclose artificially generated or manipulated content. This could have a significant impact on influencers and advertisers, and the content generated, particularly around “artificially manipulated” content.
• To consider the impact of influencers on minors and the wellbeing of "Kidfluencers" (influencers under 18 years of age), and the need for guardians to protect and support Kidfluencers, to ensure that they are aware of their legal obligations.

Comment

The Council’s recommendations, if adopted, could have significant impact on influencers, influencer marketing strategy and the way that influencer content is produced and shared. This developing space will only continue to change – through the adoption of new policies, the possible introduction of an ethical code, and the need to include disclaimers for artificially manipulated content.

Nevertheless, this change comes with benefit for advertisers and marketing teams working with influencers: there is the opportunity to shape policy, at both Member State and EU-level. The introduction of the proposed guardrails may also provide some reassurance to advertisers who work with influencers that the content is on the right side of relevant advertising regulation. 

This article was co-written by Anna Ghataure, trainee solicitor.