The European Commission has published its Digital Fairness Act proposal, outlining new requirements for influencer advertising, online pricing and consumer protection that could change how European businesses manage commercial partnerships with content creators.
Presented on 11 November, the legislation seeks to address commercial practices that Brussels believes are insufficiently covered or inconsistently enforced under existing consumer law.
The proposals specifically target undisclosed influencer marketing and promotional content that exploits the trust of vulnerable consumers, particularly children.
They form part of a broader package also addressing manipulative website design, subscription cancellations and misleading pricing practices.
For advertising agencies and corporate communications departments, the development moves the debate beyond whether influencers should identify paid content towards the wider accountability of brands, agencies and individual creators.
From Policy Discussion to Legislative Proposal
The Commission’s Digital Fairness Act proposal follows consultations examining the effectiveness of European consumer protection rules in digital markets.
As QuestComms reported on 31 October, the initiative was expected to address promotional transparency and potentially manipulative marketing techniques.
The publication of the legislative text now provides a clearer indication of the Commission’s intended direction.
The central concern is that consumers may not always recognise when supposedly independent recommendations are commercially motivated.
Influencer advertising can involve direct payments, free products, affiliate commissions or other commercial arrangements.
These relationships are not always apparent to viewers, particularly when promotional material resembles an individual’s ordinary social media content.
Existing EU consumer legislation already prohibits misleading commercial practices and requires advertising to be identifiable.
The proposed Act seeks to make those requirements more explicit and consistent across digital channels.
However, the proposal is not yet binding law. Its final provisions will depend on negotiations between the European Parliament and member states.
Advertising Labels Are Only Part of the Problem
Identifying sponsored content is an established requirement in many European jurisdictions.
However, appropriate disclosure involves more than adding a generic hashtag to a post.
The commercial relationship must be sufficiently clear for the intended audience to understand the nature of the recommendation.
The issue becomes more complicated where promotional content is distributed through multiple platforms with different interface designs.
A disclosure visible in a video description may be less apparent when the same material is republished as a short clip.
Temporary social media stories, live broadcasts and affiliate links can create further difficulties.
For international campaigns, agencies must also account for differences in national advertising guidance and enforcement practices.
The Commission’s proposal is intended to reduce such inconsistencies.
Nevertheless, its implementation will still require businesses to understand how the eventual requirements apply to individual formats.
Brands Cannot Treat Influencers as Independent from Their Campaigns
Influencer marketing often involves several parties.
A brand may commission a communications agency, which works with a specialist influencer agency that contracts individual content creators.
This structure can complicate responsibility when advertising claims are inaccurate or sponsorship arrangements are insufficiently disclosed.
A contract assigning responsibility to the influencer does not necessarily eliminate the advertiser’s obligations under applicable consumer protection law.
Brands therefore have a commercial interest in reviewing how partnerships are documented and supervised.
Contracts should clearly establish the nature of the commercial relationship, required disclosures and procedures for approving factual claims.
They should also identify who is responsible for correcting misleading information and maintaining records of published promotions.
These are prudent compliance arrangements, rather than a claim that the Digital Fairness Act has already imposed a particular contractual template.
Children and Vulnerable Consumers Receive Particular Attention
The proposed legislation also seeks stronger protection against practices exploiting the vulnerabilities of young consumers.
Influencers can develop relationships with followers who regard their recommendations as personal advice rather than conventional advertising.
That relationship becomes particularly sensitive when marketing reaches children.
The Commission wants stronger safeguards against promotional techniques that take advantage of young audiences’ trust or limited commercial experience.
Businesses working in gaming, entertainment, fashion and consumer products may therefore need to examine both campaign content and audience composition.
Age-related risk assessments could become a more prominent part of campaign planning.
Stronger Enforcement Across the Single Market
Alongside the Digital Fairness Act, the Commission has proposed reforming the Consumer Protection Cooperation Regulation.
The accompanying initiative would give Brussels stronger powers to investigate certain large-scale infringements affecting consumers across several member states.
Proposed penalties in relevant cases could reach 6 per cent of worldwide annual turnover.
These enforcement reforms are part of the wider legislative package and should not be confused with penalties already imposed under the Digital Fairness Act.
For multinational advertisers, stronger coordination could reduce differences between national enforcement approaches.
It could also increase the consequences of campaigns that breach rules across several European markets.
What Marketing Departments Should Examine
The immediate priority for businesses is to distinguish obligations already in force from those still under negotiation.
Existing rules concerning misleading advertising and commercial transparency continue to apply.
The proposed legislation may introduce more detailed requirements, but the final wording and implementation timetable remain uncertain.
Companies can nevertheless examine their current procedures for influencer selection, advertising disclosure, factual verification and campaign monitoring.
Particular attention should be paid to arrangements involving minors, affiliate marketing and cross-border promotional activity.
The broader development is that influencer marketing is increasingly being treated as a regulated commercial activity rather than an informal extension of social media engagement.
For agencies and advertisers, reliable documentation and clear responsibility for published claims are likely to become increasingly important as the European legislative process advances.
