An intervention to protect users

3 min read

What rules apply to influencers? The “Pandoro Gate” has made this question urgently relevant, as can be seen by scrolling through the front pages of newspapers these days. Agcom’s response comes timely because the Authority took an interest in the topic at an unsuspecting time, starting the process that led to the approval of the guidelines as early as July 2023, as reported in Andrea Biondi’s article in today’s newspaper .

About six months ago Agcom launched a public consultation on measures aimed at ensuring compliance by influencers with the provisions of the TUSMA-Consolidated Law on audiovisual media services. The Authority’s initiative was inspired by the consideration of the significant impact of influencers of all sorts (vloggers, streamers, creators, uploaders, etc.) not only on consumers, but more generally on society. This is a first aspect of great interest in Agcom’s approach: it is not limited to ensuring consumer protection, above all through the adoption of measures aimed at making advertising posts recognisable, distinguishing them from “disinterested” ones, but takes care also other profiles, such as the protection of minors, the transparency and correctness of information, the protection of users in terms of fundamental human rights, etc.

The room for maneuver is delimited by law: Agcom enhances the interpretation of TUSMA to attract influencers in the sphere of regulation. Under certain conditions, the activity of influencers is similar to that of media service providers (such as VoD services) and therefore must be carried out in compliance with the rules applicable to the latter.

The text of the guidelines is not yet available, but it is clear that not all influencers meet the requirements to be regulated as media services: TUSMA cannot be considered applicable to those who disseminate content without any profit or even to micro-influencers who, despite entering into advertising agreements and monetizing their content, nevertheless carry out the activity in a non-continuous or less structured manner or with a small following. The guidelines approved by Agcom indicate the criteria for identifying the relevance threshold below which influencers are not considered homologable to media services, as happened in 2010 with resolutions 606/10/CONS and 607/10/ CONS, with reference to different services.

This does not mean that micro-influencers will be consigned to a regime of anomie: they will still be subject to general regulations such as the regulation of commercial communications, which finds its main source in the Consumer Code, the criminal code, the regulation regarding the right of author, etc. Moreover, contrary to what has been stated in recent weeks by some commentators who have become lawyers, influencer marketing has not so far been suspended in a dimension without rules: as proof of this, the Competition and Market Guarantor Authority has started in 2018 several proceedings for hidden advertising against not only people who enjoy large followings on social media, but also micro-influencers with less than 1,000 followers. Furthermore, as part of the advertising self-discipline system, the Digital Chart was adopted in 2016 (merged into a specific regulation in 2019), to the development of which the undersigned also contributed.

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