Depending on their activities, influencers are likely to be subject to provisions under EU consumer law. For example, EU consumer law provides that commercial communications (i.e. advertising) need to be transparent. This will include any promotion of products or services of a brand in a post that earns its influencer revenues or other types of benefits. Influencers who promote or sell products or services that fall under the Unfair Commercial Practices Directive 2005/29/EC should not mislead consumers with false or untruthful information. In addition, influencers who sell products or services for their own account have the same legal obligations as online shops, such as providing consumers with legal guarantees or withdrawal rights as required by the Consumer Rights Directive 2011/83/EU.

The Consumer Protection Cooperation Network is a network of national authorities which cooperate with each other tackle infringements of consumer law including working with the European Commission to coordinate “sweeps”, a set of checks carried out on websites simultaneously by the Network to identify breaches of EU consumer law in a particular sector.

On 14 February 2024, the European Commission and 22 Member State consumer protection authorities released the results of a sweep of influencer social media posts. Posts of 576 influencers published on major social media sites were checked. Amongst other things, the sweep found that nearly all influencers (97%) posted commercial content but only 20% systematically disclosed this as advertising. 78% of those surveyed were engaged in a commercial activity but compliance with legal requirements, such as display of company details on the posts, was low. 358 influencers were earmarked for further investigation.

The results of the sweep will feed into the Commission’s fitness check of EU consumer law for digital fairness launched in 2022, which is considering several consumer protection issues including influencer marketing.

In the meantime, the 2022 EU Digital Services Act, which became applicable for all in-scope online service providers on 17 February 2024, will require influencers to declare whether their content contains commercial communications and, if they qualify as traders, they will need to provide information to ensure their traceability before they can use an online platform to promote or sell their products and services.

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