One hashtag to rule them all? Mandated disclosures and design duties in influencer marketing practices

Abstract

Social media influencers (SMI) have become familiar figures over the last few years. We visit their profiles, watch their “stories”, retweet, like and share their posts. Bloggers, vloggers, Instagrammers, Facebook Famous and Musers are terms that have entered our daily vocabularies and such people have established themselves as new celebrities. However, the influencer phenomenon is not just about amusement. Considering the authority and reputation gained in the Internet arena, the value of SMIs - as a new generation of testimonials - has been promptly understood by brands and advertising professionals. A large part of marketing investment is now dedicated to securing the endorsement of influencers, and methods for identifying the relevant or emerging influencers in a given area have even been patented. Influencer marketing is not prohibited a priori by law but has raised several concerns from a legal standpoint. When an SMI endorses a particular brand or product without clearly disclosing the marketing purpose of that communication she can deceive the audience of followers, affecting their consumption choices and habits. This is likely to be fostered by two main factors that depend on the design of the social media user’s journey. First of all, influencer marketing is more difficult to recognise because of the media used. Indeed, context plays an important role in making the consumer aware of marketing intent. When the consumer is in front of the TV watching an advertising break during her favourite programme or is looking at a billboard she can easily identify that she is staring at an advertisement. In contrast, social media blurs the boundaries between private and public life, between personal and commercial activity: sponsored endorsements by SMIs end up being absorbed and diluted in the constant flow of posts published, popping up among contents narrating events of everyday life. Second, the consumer may not recognise that she is being exposed to an advertisement because of the nature of the individual conveying the message: a trusted peer. Especially in the case of bloggers or vloggers, who have reached their popularity thanks to their activity of reviewing products or creating tutorials, the SMI is perceived as an independent third party who shares an opinion based on her personal experience. Considering these structural factors, the consumer can be misled by the activity of a SMI if the relevant information about the commercial nature of the communication is kept hidden from its recipients. If user-generated content (UGC) is presented as a simple post or tutorial the consumer might not activate the self-defence mechanisms that usually help her to critically filter the content of an advertisement. The existing legal framework can certainly offer some responses to tackle the issue of the transparency of commercial communications. The issue is not entirely new, but it does indeed pose additional challenges to European law and some of its traditional categories, such as “trader” or “commercial practice”. The aim of this paper is to navigate such legal uncertainties and shed some light on the application of the European consumer and media laws to the SMI phenomenon, focusing in particular on information obligations. The structure of the paper is as follows. After offering a preliminary overview of the main actors involved in influencer marketing and corresponding relationships in Section II, the paper will critically reconstruct what the information duties are for SMIs, paying attention to the first interpretations and cases occurring at national level (Section III). Then the contribution will address the role of social media platforms in influencer marketing. It will argue arguing for subjecting such online intermediaries to specific duties in designing their web-infrastructure in such a way as to embed legal principles in the online environment (Section IV). Finally, the paper concludes in Section V, highlighting suggestions and proposals for enhancing the protection of online consumers and the transparency of influencers’ practices.