Brand-influencer partnerships: what are the regulations in Europe?

On the old continent as elsewhere, influencer marketing is a fast-growing market. On Instagram, YouTube, Pinterest, TikTok, Twitter or Twitch, partnerships between brands and influencers are legion. Yet, the rules applicable to these collaborations remain unclear. One question, in particular, is agitating advertisers and content creators: how to identify sponsored posts on social networks. To help you understand this issue, the Hivency influencer platform takes you on a (non-exhaustive) tour of Europe’s influencer marketing regulations.

Transparency of commercial communications: an obligation

European law requires the identification of commercial communications and the persons for the account of whom they are made (art. 6 of the Directive on Electronic Commerce). This transparency obligation is transposed into the national law of each EU member state. 

However, at the European scale, there are no regulations specifically regulating influencer marketing. The specific rules governing partnerships between advertisers and content creators therefore vary somewhat from north to south and from east to west. 

EU countries give prominence to self-regulation in this area. Professional organizations (ARPP in France, IAP in Italy, etc.) enact deontological rules and “good practices” that complete their national law.

One constant can nevertheless be observed: in France, Germany, Spain and also Italy, the obligation of transparency must be respected by both advertisers and influencers. 

The identification of sponsored posts in France

In the Hexagon, posts published as part of commercial collaborations must be clearly identified. The omission of this obligation may constitute a misleading commercial practice. 

According to the Autorité de Régulation Professionnelle de la Publicité (ARPP), a commercial collaboration is characterized when an influencer publishes content in exchange for financial consideration or compensation in kind (gift, invitation to an event, etc.). 

According to ARPP:

• The identification of commercial communications can be done by any way: orally if the published content is a video, in writing if the nature of the post allows it or via the features integrated in social networks. 
• The identification of sponsored posts must be instantaneous. Therefore, the information must be disclosed at the top of the text accompanying the publication, in the first three hashtags associated with the post or at the beginning of the video. 
• The identification of promotional publications must be explicit. Therefore, the mentions “#ad”, “#sponso”, “#sp”, “thanks to”, “I was offered to test” or “I was contacted by” are not satisfactory. The influencer should prefer clear formulations such as “in partnership with”, “paid partnership”, “advertising” or “sponsored by”. 

This video from ARPP explains all the rules in a few minutes.

The identification of publications with advertising nature in Germany

German law provides for a clear distinction between editorial content and content of a commercial nature. Promotional publications must be identified in its current forms, or they will be qualified as concealed advertisements. 

According to the media authority – die Medienanstalten – any reference to a brand or product is considered to be an advertisement as long as it is based on an agreement or cooperation. No matter whether the publication results in any remuneration or benefit in kind (discount, gift of a product, invitation to a trip…).

When an advertising offer is identified, die Medienanstalten states that :

• “Werbung” or “Anzeige” (“advertisement”, in the language of Molière) must be mentioned at the beginning of the relevant post (blog post, Facebook, Twitter, Instagram publication…, etc.).
• In the case of a video, the information must be delivered at the beginning of the video and appear permanently on it. As an exception, if the product plays a secondary role, the terms “Produktplatzierung” (“product placement”), “Unterstützt durch Produktplatzierung” (“supported by product placement”) or “Unterstützt durch” (“supported by”) can be used. 
• The integrated features of social networks are not sufficient to identify advertising content. In addition, English language entries (“ad” for example) are not acceptable if the account is managed in German language.

Identifying marketing content in Spain

Spanish law also requires a clear distinction between marketing content and editorial content. The concealment of a collaboration constitutes an illegal practice with regard to, among other things, competition law and consumer law. 

In its “Code of conduct on the use of influencers in advertising”, the Asociación para la Autorregulación de la Comunicación Comercial, known as “Autocontrol”, defines three cumulative criteria to identify publications of a commercial nature. According to this professional organization, marketing content is that which (1) aims to promote a product or service, (2) is published as part of a collaboration that gives rise to remuneration or consideration (free product delivery, invitation to an event, gift voucher, etc.) and (3) is subject to the control of the advertiser or its agent (either because they require all or part of the content or because they validate the post before it is distributed). 

According to the stated Code  (CÓDIGO DE CONDUCTA SOBRE EL USO DE INFLUENCERS EN LA PUBLICIDAD): 

• Posts of a promotional nature must be explicitly identified. Autocontrol recommends the use of clear terms such as “publicidad” (“advertising”), “en colaboración con” (“in collaboration with”) or “patrocinado por” (“sponsored by”). More descriptive statements such as “Embajador de” (“Ambassador of”), “Gracias a” (“Thanks to”) or “Regalo de” (“Gift of”) are also permitted. On the other hand, the generic indications, not easily comprehended (“sponso” or “sp” for example), or requiring an action on the part of the user (“click here”) must be avoided. 
• The mention indicating the advertising nature of the post must remain attached to it when it is shared.
• The wording allowing the identification of the content must be adapted to the medium used. Depending on the media chosen, the message can be stated verbally, appear in the title of the publication, appear at the beginning of the post, be shown on the image or be highlighted thanks to the integrated features of social networks (see p.8 of the Code). 

Identifying brand-influencer partnerships in Italy

Unsurprisingly, Italian law also orders the identification of marketing communications. In case of failure to comply with this transparency obligation, the offenders (brand and influencer) can be subject to liability for illegal advertising practice and unfair competition. 

The Instituto dell’Autodisciplina Pubblicitaria (IAP) defines marketing communications as content created in the context of an agreement for monetary or in-kind compensation. 

In short, according to the terms of the IAP Digital Charter (p.11):

• When a publication includes promotional content, the use (cumulative or not) of the following wording at the beginning of the post or in an associated message is recommended: “Pubblicità/Advertising” (“advertising”), “Promosso da/Promoted by” (“promoted by”), “Sponsorizzato da/Sponsored by” (“sponsored by”), or “in collaborazione con/In partnership with” (“in collaboration with”). The following wordings may also be used as long as they are included in the first three hashtags next to the publication: “#Pubblicità/#Advertising”, or “#Sponsorizzato da/#Sponsored by”, or “#ad” coupled with “#brand”. 
• On the other hand, when the relationship between the content creator and the advertiser is not based on an agreement and simply consists of the sending of free products by the advertiser, terms such as “prodotto inviato da” or “product sent by” may be used. 
• In all circumstances, the indication must appear immediately: in the first hashtags, at the beginning of the publication or in the first moments of the video for example. Moreover, the Charter specifies that it is the advertiser’s responsibility to inform the content creator about these mandatory mentions. Finally, we note that the IAP tolerates English, unlike its French, German and Spanish counterparts. 

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At the end of this quick overview of regulations, you are better equipped to serenely apprehend your future influencer marketing campaigns. For more information on the legal and regulatory framework applying to brand-influencer relationships, please refer to the guides published by each of the above-mentioned professional organizations (links above). Happy collaborations! 

This article has been translated into English from this French version.

Crédits photo : Laura Chouette via Unsplash

Sources : International Trademark Association (INTA) – Recent Developments in Influencer Marketing and Unfair Competition ; Osborne Clarke  ; Legifrance – Loi n° 2004-575 du 21 juin 2004 pour la confiance dans l’économie numérique ; ARPP – Règles de déontologie ;  ARPP – Recommandations animations graphiques ; ARPP – Observatoire du marketing d’influence : les bonnes pratiques ; ARPP – Charte d’éthique du marketing d’influence ; Siècle Digital ; Haas Avocats ; Stratégies n°2022 – janvier 2020, p. 22-23 ; Alliance Européenne pour l’Ethique en Publicité (EASA) – Best practices recommandations on influenceur marketing ; Die medienanstalten – Guideline of the Media Authorities Advertising Identification of Social Media Offers ; Autocontrol – CÓDIGO DE CONDUCTA SOBRE EL USO DE INFLUENCERS EN LA PUBLICIDAD  ; Instituto dell’Autodisciplina Pubblicitaria ; IAP’s Digital Chart ; IAP – Code of Marketing Communication Self-Regulation Italy