Superior Council of Audiovisual (BE)

The Superior Council of Audiovisual (CSA) recently conducted an in-depth study on commercial communication and its use by influencers in the Wallonia-Brussels Federation (FWB). This study, based on monitoring 146 videos broadcast on YouTube, TikTok, and Instagram in 2022, aims to understand how influencers integrate commercial communication into their content.

While the sample of this study (146 videos) is limited, the information drawn from it is nonetheless interesting.

The CSA encourages a transparent and ethical approach to commercial communication. By following these best practices and being aware of the warnings, influencers can maintain a positive relationship with their audience while respecting ethical and legal standards.

To achieve these objectives, a FAQ has been set up by the CSA to guide influencers.

Here are some key elements:

1. Transparency and identification: The CSA insists on the importance of transparency in commercial communication. Each sponsored content must be clearly identified as such. Mentions such as “advertising” or “commercial collaboration” must be visible and legible to the public. This transparency is necessary and important to maintain trust between influencers and their audience and to avoid any risk of confusion.

2. Truthfulness of information: All statements or promises made by influencers must be true and verifiable. Promoting false information or making unsubstantiated claims can not only damage the influencer’s credibility but also mislead the public. The CSA encourages an approach based on honesty and integrity.

3. Compliance with laws and regulations: Fairly logical, but it is worth recalling that influencers must ensure that the product or service they promote complies with the legislation in force. This includes compliance with advertising standards, consumer rights, and other relevant regulations. Non-compliance can result in severe penalties. For more information on this subject, see my book on social media law.

Note also that certain products or services cannot be advertised by an influencer and that specific rules may apply in addition for certain products.

In Belgium, the FSMA has drafted a regulation concerning advertising of crypto-assets. For an analysis of the regime, see the explanatory article on this regulation.

Ministry of the Economy (FR)

The French Ministry of the Economy, Finance and Industrial and Digital Sovereignty has published a guide describing the rights and duties of influencers and content creators. This guide aims to help the approximately 150,000 French people who carry out this activity, whether as a primary or secondary occupation, to understand the rules applicable to their profession and to exercise responsibility in their work.

Best practices for influencers

Transparency: If the content promotes a product or service and the influencer has received a benefit for its distribution, they must indicate the commercial intent of their content. This transparency is essential to maintaining the trust of your audience.

Clear indication of the commercial nature of content: The commercial nature of the content must be clearly indicated by the mention “advertising” or “commercial collaboration.” This mention must be displayed in a clear, legible, and identifiable manner throughout the duration of the promotion.

Identify the advertiser: The advertiser or brand for which the commercial communication is made must be clearly identified.

Truthful and verifiable claims: The influencer cannot highlight qualities, gains, or results of a product or service if they cannot justify them.

Compliance with the law: The influencer must ensure that the product they are advertising is not fictitious and that it complies with the various applicable laws. There is therefore a real responsibility on the part of the influencer.

Use platform features: Most platforms now offer a feature to specify whether content is commercial or advertising.

Responsible influence: As an influencer, you have a responsibility toward your audience. The people, often young, who follow you trust you. This trust obliges you to be responsible in your work.

Adherence to ARPP recommendations: The ARPP (Professional Advertising Regulatory Authority) provides recommendations on communication.

The ARPP responsible influence certificate: This certificate, created in September 2021, proves that the influencer has been made aware of the legal and ethical framework of influencer marketing.

Warnings for influencers

The guide reminds that exercising influence is not without risk or responsibility and that various sanctions exist in case of non-compliance with applicable provisions.

1. Penalties for non-compliance: The absence of the mention “advertising” or “commercial collaboration” in a communication may constitute a “misleading commercial practice,” punishable by two years of imprisonment and a fine of EUR 300,000.

2. Misleading claims: It is prohibited to claim that a product or service increases the chances of winning a game.

3. Unsubstantiated claims: It is also prohibited to promote, directly or indirectly, products, procedures, processes, techniques, and methods presented as comparable, preferable, or substitutable for therapeutic acts, protocols, or prescriptions if you cannot justify them.

4. False promises: It is forbidden to make false promises about a product or service. For example, it is illegal to claim that a product or service is “good for health” or that it allows you to “lose 10 kg in a month” or “earn EUR 5,000” if these claims are not true and verifiable.

5. Misrepresentation of qualities: You cannot highlight qualities such as “made in France,” “natural,” etc. if you cannot justify them.

6. Misuse of platform features: Misuse of platform features to distort the commercial nature of your content can result in penalties.

7. Non-compliance with ARPP recommendations: Non-compliance with ARPP recommendations can result in sanctions from the Advertising Ethics Jury (JDP).

8. Non-compliance with ethical charters: Non-compliance with ethical charters regarding influencer marketing can damage your reputation and your audience’s trust.

In conclusion, being an influencer is a serious profession, sometimes complex, because it is not easy for creators to understand the rules applicable to them. However, by following best practices and avoiding potential pitfalls, influencers can maintain a positive relationship with their audience, the brands they represent, and the platforms they use.

FCA (UK)

The FCA, the British financial regulatory body, is interested in the growing use of social media for marketing purposes by companies. It has published a guidance consultation to address concerns about financial promotions that may harm consumers.

The FCA’s objective is to ensure that consumers have access to quality commercial information across all channels, including social media. It is particularly concerned about the increase in the number of financial influencers on social media promoting investment and credit products.

The FCA wants to ensure that financial promotions on social media are fair, clear, and not misleading. This is part of its ongoing efforts to protect consumers and maintain the integrity of British financial markets.

Here is a brief summary of this consultation:

1. The rise of social media in financial promotions: The FCA recognizes the growing use of social media as a marketing tool by companies. The UK social media advertising market was worth GBP 6.4 billion in 2021, representing nearly a third of all Internet advertising spending.

2. The role of influencers: The FCA has noted a substantial increase in the number of financial influencers, also known as “finfluencers,” on social media promoting financial products, particularly investment and credit products. Many of these promotions target young consumers.

3. Prominence of required information: The FCA wishes to address specific design features of social media that have the effect of obscuring required information. It also provides graphic examples of promotions for various financial services to facilitate understanding of its expectations.

4. Consumer duty: The FCA provides guidance on new marketing trends on social media, such as affiliate marketing. It emphasizes that companies must monitor the communications of those using their affiliate links to ensure good outcomes for consumers.

5. Unauthorized influencers: The FCA addresses the harm caused by unauthorized influencers who communicate illegal financial promotions. It provides additional guidance on the scope relating to financial promotions on social media under Section 21 of the Financial Services and Markets Act 2000.

6. Crypto-asset firms: Crypto-asset firms registered with the FCA under the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 must familiarize themselves with how they can communicate crypto-asset promotions under the regime.

7. Territorial application: Section 21 has a broad territorial application. It applies even when a communication originates from outside the United Kingdom if it is capable of having an effect in the United Kingdom. Any breach of Section 21 constitutes a criminal offense.

8. Non-compliant financial promotion: A non-compliant financial promotion is a promotion that has been legally communicated or approved by an authorized person but which breaches the FCA’s financial promotion rules.

Note also that the FCA is opening a public consultation on various issues related to the prominence of required information, expectations under the consumer duty, the approach to affiliate marketing, the use of social media profiles shared between UK and non-UK entities, and the proposed guidance on the scope of financial promotion.

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