The European Economic and Social Committee (EESC) recently released a report recommending updates to the regulation of influencers and influencer marketing, while flagging areas in need of future regulation, including content made with generative AI.
The EESC released a report on 3 July 2023 recommending improvements in the regulation of influencers (in particular, influencer marketing).
Whilst the report notes that the existing framework of European legislation provides sufficient protection for consumers against influencers' unlawful activities, the EESC recommends that more is done to ensure the harmonised application of influencer marketing rules across the EU.
The EESC is calling for specific obligations to be imposed both on the administrators of social media platforms and on the influencers themselves (whether or not they are EU resident).
Social Media Platforms
The EESC’s proposals call for social media networks and platforms to:
- be jointly and severally liable for illegal content published on their platforms by influencers;
- take action to remove any illegal online communications published by influencers and report illegal activity to a competent authority; and
- introduce requirements for all influencers operating outside of the EU to identify someone legally liable for their activities within the EU, holding adequate professional indemnity insurance.
For influencers, the EESC has highlighted several areas that it suggests should be included within future regulation, including:
- identification of content of a commercial nature, with clear indicators and warnings to avoid covert advertising – e.g., the EESC recommends that virtual images (created using generative AI) and retouched or modified images are clearly identified;
- the introduction of sector-specific rules, with the express aim of protecting the health and safety of consumers (especially minors and other vulnerable groups); and
- ensuring that breach of regulation is an act of infringement by the influencer in their personal capacity (without prejudice to any joint and several liability of advertisers and/or social media platforms).
The report highlights other unlawful practices that regulation may seek to address, such as the use of 'dark patterns' and the unauthorised use of celebrity images to create fake influencers (which has been a problem seen in the promotion of unregulated financial products and cryptocurrencies). The increased sophistication of AI, which is only going to develop further over time, is also specifically identified in the report as presenting a key risk to unlawful conduct in advertising, which the EESC wants to see tackled effectively.
At this stage, the EESC is merely outlining the areas where the EU may benefit from a harmonised approach to the regulation of influencers, and it is currently unclear, how, and if, the proposals will materialise into regulation. However, the report itself is a useful reminder of key concerns facing the influencer industry and the EU’s continued interest in making improvements in this area.