Screening by the European Commission

In a recent published article we addressed issues related to the legal regulation of a prominent phenomenon of the 21st century digital marketing environment – influencer marketing. The popularity of this specific type of commercial promotion of products and services based on the influence of celebrities and the reach of social networks has been on the rise for several years, but in practice it appears that the legislation in many European countries is far from being prepared for this trend. The Czech Republic is no exception.

On 14 February this year, the European Commission published the results of a screening[1] of influencers’ posts from 24 Member States (including the Czech Republic) published on mainstream social networks, which focused on compliance with the obligation of transparent labelling of advertising. The findings of the screening are alarming.

The European Commission checked the posts of 576 influencers, 97% of which posted commercial content, but only 1 in 5 influencers systematically stated that it was advertising. In addition, almost a third of influencers did not even include any information about the company, whose goods or services they were promoting (e.g. name, email or postal address or identification number) in their posts.
38% of influencers did not use a label pre-made by the social platform to label the ad (e.g. “paid partnership” on Instagram). On two-thirds of the profiles examined, information about the advertising nature of the posts was only visible after the user had taken further action, such as clicking the “read more” button. Another interesting finding by the European Commission is that 40% of the influencers audited promoted their own products, services or brands, but most of them (60%) did not consistently (or at all) state that they were advertising.

In addition, the investigation of the European Commission has revealed another fact that constitutes a strong warning signal of a very serious potential problem. More than a fifth of the influencers surveyed promoted unhealthy or even dangerous activities such as eating unhealthy snacks, drinking alcoholic beverages, gambling, financial services such as cryptocurrency trading or medical aesthetic treatments. This phenomenon could pose a threat particularly in relation to underage viewers and the potential lack of labelling of advertising and the harmfulness of advertised goods and services.

European legislative framework

European consumer law legislation[2] stipulates that any commercial communication must be transparent. This also applies to advertising posts on social media. This also implies a number of obligations and prohibitions related to online marketing, such as:

• audiovisual commercial communications must be easily recognisable and
• must not be harmful to health or safety,
• online commercial content must not take advantage of the inexperience or gullibility of minors, etc.

In addition, on 17 February this year, the Digital Services Act (DSA) came into force, which aims in particular to strengthen the security of the online environment for its users. The DSA aligns certain legal obligations for all online platforms in the EU – including, for example, the obligation for users to indicate whether or not a post is an advertisement. 

However, it can hardly be assumed that EU law will close all the legislative gaps that the legal systems of European countries are facing as a result of the rapid global spread of influencer marketing. Finally, the conclusion of the European Commission press release, on which this article is based and which it quotes, states that the problematic nature of online marketing practices illustrates the importance of modern, robust legislation to ensure digital justice for online users. It is to be hoped that this screening, in the context of many other suggestions, will serve as an impetus for the legislators to modify and expand the current inadequate legislation.

[1] Investigation of the Commission and consumer authorities finds that online influencers rarely disclose commercial content. Europa.eu [online]. 2024, 14.2.2024 [cited 2024-03-08]. Available from: https://ec.europa.eu/commission/presscorner/detail/en/ip_24_708

[2] in particular the E-Commerce Directive, the Audiovisual Media Services Directive, the Unfair Commercial Practices Directive and the GDPR