Garrigues Digital_

Legal innovation in Industry 4.0




EASA's recommendations: content uploaded by influencers is defined as a marketing communication if there is compensation and editorial control

Cristina Mesa (senior associate of Intellectual Property and Fashion Law Practices).

The growing use of influencer marketing has brought its regulation (or lack of it) into the spotlight, creating serious doubts as to what influencers can or can’t do. Does a marketing communication always have to be identified? Is the hashtag #publi compulsory? In Spain we still follow specific legislation, but the publication by the European Advertising Standards Alliance of Recommendations on Influencer Marketing are a good clue as to the position that AUTOCONTROL will finally adopt.

At the end of 2018, the European Advertising Standards Alliance (“EASA”), published its Best Practice Recommendation on Influencer Marketing. For those of you who are not familiar with the association, EASA is in charge of promoting high ethical standards in advertising in the European Union through self-regulation. EASA is not a self-regulatory organization in itself, but the body that coordinates and provides support to the different self-regulatory organizations in Europe. As such, the recommendations it publishes are a good indication of the policy that AUTOCONTROL will adopt in Spain. Let us look at this.

How do we know that the content is a marketing communication?

The key lies precisely in differentiating between “editorial content” and “commercial communications”, the latter being the only content that needs to be identified.  However, it is not always easy to differentiate between the two.  Key criteria for EASA are the existence of “compensation” and “editorial control”.

“Editorial control” can be understood broadly and includes suggestions by brands in relation to the tone, structure and/or direction of the message. For example, EASA cites requests for a positive review, requests for a specific number of posts on social networks mentioning the specific service/product, pre-suggested message scripts for the brand, etc.

“Compensation” in turn covers scenarios ranging from formal contractual agreements defining monetary payments to a mere provision of free goods or other reciprocal commitments between the brand and the influencer for the benefit of the influencer. Other benefits such as discounts can also be considered as “compensation” when determining whether a certain content is advertising.

How can you identify marketing communications?

If we reach the conclusion that the content in question is a “commercial” communication, then it must be identified so that the audience clearly recognizes it as such. For EASA a commercial communication can be identified in several ways, the only requirement being that it be clearly distinguishable as such. However, the Best Practice Recommendation does not provide complete instructions and simply lists the criteria that the various self-regulatory organizations need to bear in mind. As far as Spain is concerned, AUTOCONTROL needs to address the following aspects:

  • Where the identification should be placed 
  • Timing of the identification
  • Labelling, such as particular hashtags which are commonly accepted to avoid confusion among consumers as to the nature of the message
  • Specific wording (such as phrases used to correctly identify the nature of the advertising (e.g.  “these products have been sent for free to give a review”, or “the trip was sponsored by”). However, EASA naturally insists on the need to be flexible with these criteria in order to adapt to the constant changes in online advertising.

Who is responsible for complying with these obligations?

As laid down by the ICC (and also be the US Federal Trade Commission), EASA opts for general rules on responsibility which include both the brands and the influencers themselves. Consequently, EASA encourages the different self-regulatory organizations to raise awareness of responsibilities and obligations resulting from influencer marketing through all types of awareness campaigns.

It is therefore up to AUTOCONTROL to move forward in the self-regulation of influencer marketing, a task that has already been carried out by the various self-regulatory organizations of Belgium, France, Germany, Ireland, Italy, Sweden, Holland and the UK, among others. We will keep you posted!