Digital Fairness Act Unpacked: Social Media Influencers

What are the "harmful practices by social media influencers" according to the consultation?

The European Commission is focusing on practices that are gaining importance due to the increasing importance of social media for consumer transactions:

• Hidden marketing – influencers do not clearly label adverts as such.
• Promotion/sale of potentially harmful products – such as tobacco or vaping liquids, unhealthy foods, dietary supplements, plastic surgery, cosmetic procedures, or the promotion of unrealistic beauty standards.

According to the European Commission, these practices can compromise consumer protection and the safety of minors because they mislead users – especially children and adolescents – into making purchases (including potentially harmful products).

What is the current regulation regarding social media influencers?

Trade and marketing by influencers are currently not specifically regulated under EU consumer protection law. For influencers, the Unfair Commercial Practices Directive (UCPD, Directive 2005/29/EC) or the corresponding implementation in national law applies. The Guidance published by the European Commission on the interpretation and application of this Directive devotes an entire section to influencer marketing (section 4.2.6, p. 97 et seqq.) – a clear signal that social media influencers are important target groups.

The statements of the guidance in detail:

• Influencers may be traders or persons acting in the name of or on behalf of the trader within the meaning of Art. 2 lit. b UCPD, in particular in the case of regular advertising to consumers.
• Influencers are natural persons or virtual entities that have a greater than average reach in a relevant platform. Influencer marketing is often more difficult for consumers to identify as commercial advertising than other forms of online advertising. Even if influencers use disclaimers, average consumers, particularly minors, could easily misunderstand the posts as personal recommendations.
• Hidden marketing falls under Art. 6 and Art. 7 UCPD: According to Art. 7 para. 2 UCPD, any commercial intent of the commercial practice must be clearly identified if not already apparent from the context. According to Annex I No. 11 UCPD, surreptitious advertising in which paid advertising appears as editorial content is prohibited. "Editorial content" is interpreted broadly and includes influencer posts. A lack of disclosure may also violate Annex I No. 22 UCPD (misrepresentation as a consumer).
• Disclosure must be clear and appropriate, particularly with regard to context, placement, timing, duration, language and target audience. The disclosure must be displayed prominently; it is insufficient to include it only in hashtags at the end of a lengthy disclaimer, or behind a "read more" link.
• Each commercial communication must be individually labelled – even in the case of broader endorsement arrangements.
• Any form of consideration creates a commercial intent to the communication, e.g. payment, discounts, partnership arrangements, commission from affiliate links, free products (including unsolicited gifts!), trips or event invitations – regardless of whether a formal contract has been concluded or a cash payment is made. Important: It is not only the influencers who are liable for their offences, but also any traders or brand owners commissioning or benefiting from the advertisements (Art. 5 UCPD – professional diligence). Editorial control can increase this risk but is not a requirement for liability. Influencers are liable as soon as they are categorised as traders (see above).
• The same rules also apply to influencers who promote their own products or business. They must disclose the commercial intent and may not feign non-commercial activity or consumer status (Annex I No. 22 UCPD).
• Aggressive commercial practices through the use of undue influence in accordance with Art. 8 and Art. 9 UCPDmay occur if influencers establish an abusive relationship of trust or personal connection – especially with vulnerable target groups such as minors.
• Direct exhortations towards children are prohibited without exception (Annex I No. 28 UCPD).
• Online platforms that are used for promotional activities are also subject to these obligations and have their own professional diligence obligations under the UCPD. They must enable third-party traders to comply with their obligations under EU law, e.g. by providing specific and appropriate disclosure tools in the platform’s interface (Art. 28b para. 3 lit. c AVMSD, Directive 2010/13/EU).

Furthermore, the existing provisions on pre-contractual information, marketing and contractual terms also apply to social media platforms – in addition to the AVMSD, in particular the E-Commerce Directive (Directive 2000/31/EC) and the DSA (Regulation 2022/2065/EU). Influencers are also directly bound by these obligations in some cases, in addition to the platforms that they publish on.

In detail:

• The DSA and the AVMSD enhance the requirements for the transparency of advertising.
• DSA: Platforms must provide functions for labelling commercial communication (Art. 26 para. 2). It must be easier to report and remove illegal content (e.g. promoting medicines that require a prescription in accordance with Art. 9 para. 1 lit. f Directive 2018/1808/EU and Art. 88 para. 1 lit. a Directive 2001/83/EC on medicinal products for human use) (in particular Art. 16 DSA). The DSA does not contain any new prohibitions on content that can be shared by influencers.
• AVMSD: The 2018 amendment (Directive 2018/1808/EU) introduced additional provisions for media service providers and video-sharing platforms on the disclosure of commercial communications (Art. 28a and Art. 28b). Specific advertising bans were also defined (including for tobacco products, electronic cigarettes, medicinal products/treatments available on prescription, alcohol to minors and behaviour that is prejudicial to health or safety, Art. 9 para. 1). Measures to protect minors from harmful content have been strengthened (Art. 9 para. 1, Art. 28b para. 1). At the same time, users who upload user-generated videos must declare whether these contain commercial communications (Art. 9 para. 1, Art. 28b para. 1). Member States are also obliged to promote co-regulation and self-regulation, e.g. in relation to the advertising of unhealthy food to minors (Art. 9 para. 4). These rules can be applied directly to influencers if they are considered audiovisual media services. To do so, they must fulfil certain criteria, e.g. engage in a significant economic activity, have editorial control on the content they provide and have the general public as target audience.
• In addition, several Member States have adopted or updated laws and guidelines containing definitions and specific obligations for influencers and distributors working with them, also using the AVMSD rules for influencers. For example, a French law in June 2023 (Law No. 2023-451), amended in November 2024 (Order No 2024-978), introduced prohibitions of influencer marketing involving plastic surgery/injections, pharmaceutical products and medical devices, nicotine, certain financial assets (e.g. cryptocurrencies) and wild animals, among other issues. Gambling and sports betting/prognoses are permitted, provided access is restricted for minors. Further examples of relevant national legislation are the amendments to German law from 2022, which create a presumption of remuneration for the commercial communication, unless the influencer proves otherwise (Section 5a para. 4 sent. 3 UWG). In Germany, influencers acting in a business-like manner are subject to the obligation to provide provider labelling/imprint (e.g. pursuant to Section 5 DDG). The topic of influencers is very much in the spotlight in Italy too. On 23 July 2025, the Italian Communications Authority (the so-called "AGCOM") formally adopted the Guidelines (the “Guidelines”) to ensure influencers’ compliance with the local implementation of the AVMSD and the Code of Conduct for influencers (the “Code”). The Guidelines and the Code apply to the so-called “relevant” influencers namely, those who have at least 500,000 followers on at least one social media or video-sharing platform, or who average at least one million monthly views on one such platform (the "Influencers"). On the one hand, the Guidelines identify the provisions of the local implementation of the AVMSD (Legislative Decree No. 208 of 8 November 2021) that apply to Influencers. In addition to the general principles on information, there are provisions relating to copyright, provisions protecting the fundamental rights of the individual, of minors and the values of sport, and those concerning commercial communications. On the other hand, the Code sets out additional measures and technical arrangements to ensure observance of the provisions of the local implementation of the AVMSD, in line with the principles and criteria set out in the Guidelines and taking into account the specific features of the service and of the platform or social media through which it is disseminated. Both the Guidelines and the Code provide for sanctions in the event of non-compliance. Interestingly, the Code embodies the so-called "Digital Chart", a piece of soft law drafted by the self-regulatory body for advertising in Italy. Consequently, the Digital Chart is fully applicable to, and enforceable against, Influencers.

New regulations in the area of financial services could soon also apply to influencers: The Commission proposed a revision of the retail investor protection rules in 2023. These new rules are intended to include transparency and fairness requirements for marketing communications and practices, ensuring that advertising disclosure and requirements for influencers are clearly and uniformly regulated to avoid legal uncertainty and regulatory fragmentation. However, the results of these negotiations are not yet foreseeable.

3. What is the European Commission discussing?

The consultation aims to determine whether additional measures should be considered to address these concerns – such as non-regulatory measures (e.g. guidelines), new binding legislation or more effective enforcement of existing rules. In this regard, the Commission is specifically asking whether participants are in favour of the following measures:

• Should influencers clearly and prominently disclose advertising?
• Should brands and agencies take measures to ensure that influencers comply with legal obligations?
• Should specific types of claims by influencers be restricted to protect minors, e.g. claims about unhealthy foods, dietary supplements, plastic surgery, cosmetic procedures, tobacco/vaping or the promotion of unrealistic beauty standards (e.g. by means of retouched or AI generated images used in advertising where body shape, size, or skin appearance has been changed)?

Classification of the intended regulatory approaches

The concerns raised during the consultation should be considered in the context of the Commission's Fitness Check. According to this (p. 169 et seqq.), numerous studies and enforcement measures show that many influencers do not comply with the disclosure obligations in social media.

The Commission observes a lack of transparency with regard to paid product advertising by influencers. Even if disclaimers are used, influencer advertising is often not clearly identified as such and consumers could assume that the content is presented at least partly as a personal recommendation.

The Fitness Check also expresses concerns about various practices that may pose a risk to consumers: Influencers have promoted scams or dangerous products, for example. Children are exposed to aggressive marketing of unhealthy foods and beverages, alcohol or vaping – with a potentially dangerous impact on their behaviour.

Although national laws and guidelines exist in Member States such as France, Spain, Italy, the Netherlands and Denmark, these are not always binding – as is the guidance on the UCPD. There is no case law from the ECJ in this regard. This creates legal uncertainty, for example regarding responsibilities along the value chain, especially for brands that use influencers to promote their products and services.

There are no specific prohibitions for influencers to promote specific products, apart from AVMS and other sector-specific rules. The Fitness Check warns of regulatory fragmentation.

Overall, therefore, according to the Fitness Check, despite the long-standing clauses in the UCPD, the current legal framework regarding hidden advertising is insufficient to achieve its purpose. Despite enforcement measures by authorities and self-regulatory measures such as the Influencer Legal Hub, which aims to provide influencers, advertisers, agencies and brands with basic guidance on how to comply with EU consumer law, there is still considerable legal uncertainty about the required standard and modalities of ad disclosures. Different courts, authorities, national laws and guidelines interpret aspects such as the exact wording and visual prominence required differently. For example, while the UCPD Guidance states that full transparency is required also in the case the influencer is promoting their own products or services, the German Federal Court of Justice (BGH) ruled that the commercial intent in cases where influencers promote their own company is already apparent from the circumstances and that special disclosure is therefore not required (BGH, judgment of 9 September 2021, case No. I ZR 125/20).

Therefore, while EU consumer law establishes a general legal basis for tackling transparency concerns regarding influencer marketing, the Fitness Check concludes that it is currently insufficiently precise to address all concerns raised by social media commerce, which contributes to a risk of regulatory fragmentation and legal uncertainty. For these reasons, new regulation regarding social media influencers and their marketing seems sensible, as they would regulate the problematic commercial practices in social media in a standardised and thus legally secure manner for all.