Brands and agencies could be held responsible for influencers failing to label paid or gifted content under new EU rules, even when they have no formal contract with the creator.
The European Commission published its Digital Fairness Act proposal on 11 November, setting out stricter requirements for influencer advertising across the EU. Brands would be expected to ensure creators follow disclosure rules, rather than leaving responsibility to the influencer alone.
Commissioner Michael McGrath called the package the most significant reform of EU consumer protection rules in more than 20 years, Euronews reported.
Some brands and agencies may have a little breathing room, though. The proposal must still be approved by the European Parliament and EU member states before becoming law.
Why influencer contracts may not protect brands
Brands and agencies "should therefore also be liable for compliance", according to the explanatory recitals of the published proposal. The proposed rules would require them to take appropriate steps to ensure creators follow disclosure requirements, whether through contracts or other measures. The recitals make clear that contract terms cannot exclude their own liability.
Payment is defined broadly. The text covers money or "any other form of consideration having an asset value", which could include gifted products and affiliate commissions as well as fees. It does not specifically mention affiliate links or discount codes.
IAB Austria, which represents more than 200 digital businesses, said on Wednesday that influencer rules should place responsibility on whoever has editorial control, according to Trending Topics. Under the proposal, a brand sending products to a creator could still face responsibility for missing ad labels, even without approving the content before publication. That would depend on the circumstances and the steps the brand had taken to ensure compliance.
In major cases investigated directly by the Commission, proposed fines could reach 6% of a company's worldwide annual turnover.
How the EU proposal compares with UK rules
The proposed Regulation would not become part of UK law, but British businesses targeting EU consumers could still fall within its scope.
UK rules already go further on one point. The influencer guide published in October by the ASA, CAP and the CMA names affiliate links and discount codes as ads that need labelling, and says brands, marketers and influencers are all responsible. Hellopartner.com has covered the ASA's approach to disclosure since its 2023 update, which already asked for "AD" on affiliate and gifted content.
A UK agency running a creator campaign for London and Paris would be working to similar expectations on both sides of the Channel.
For brands already checking creator content against UK advertising rules, much of the proposed approach will be familiar. Those relying on influencers to handle disclosure themselves may have more work to do. Under the Commission's proposal, putting responsibility in a creator's contract would not be enough to protect the brand.
