Who are the influencers?
In the AGCOM text, influencers are defined as “individuals who create, produce, and disseminate audiovisual content to the public, for which they exercise editorial responsibility, through video-sharing platforms and social media.”
As the activity of influencers and content creators has intensified significantly over the last decade, and especially since 2020, the Italian Communications Regulatory Authority has recognized influencers’ growing ability to influence user behavior.
It is also known that influencers are increasingly used by brands to promote their products and brands , with content creators acting as intermediaries and facilitating the relationship between the brand and the end consumer.
To understand the scope of the phenomenon, we can cite one certain fact: in 2022, the value of influencer marketing globally was 16 billion . Today it is around 20 billion and the trend is constantly growing .
Given all this data and observations, it’s not surprising that in the country with the largest number of influencers in Europe, authorities have moved to further regulate the sector.
Italian legislation on influencer marketing
In the current Italian regulatory landscape, there are no specific laws dedicated to influencer marketing.
Influencers are still required to comply with Law 145 of 2007 on misleading advertising and the Consumer Code on unfair commercial practices . These regulations are not specific to the world of influencers, but to marketing in general, which influencers fall into because they effectively practice digital marketing.
The Digital Chart regulation from the Istituto dell’Autodisciplina (Institute of Self-Discipline) is dedicated to the world of digital marketing . However, this regulation is not a law in the strict sense; rather, it is a document that provides a series of practices to follow when creating content and promoting products and services online.
For example, the Digital Chart predicts that:
- The promotional purpose of content published online by an influencer of any kind (blogger, YouTuber, celebrity, etc.) must always be made explicit.
- When the accreditation of a brand, product, or service within content has commercial purposes, the words “In collaboration with…”, “Advertising,” “Promoted by…”, or similar, must be clearly inserted at the beginning of the post or other content.
- When publishing a promotional post on social media, the influencer must include #advertising, #sponsoredby, or similar within the first three hashtags. Hashtags must be clearly visible.
The AGCOM Guidelines
The AGCOM Guidelines, introduced in January 2024, will be added to this regulatory framework . These define a series of rules addressed to influencers active in Italy. Specifically, however, the Guidelines address ” major influencers ,” who are recognized as having a broad ability to influence consumer behavior.
Major influencers include those who have at least one million followers across the various platforms they operate on and who have an engagement rate of 2% (meaning they have generated reactions through comments or likes on at least 2% of the content they publish).
The most important innovation introduced by the Guidelines is that, for the first time, they provide actual rules . Anyone who does not comply with the guidelines is therefore subject to sanctions, just as those who do not comply with the laws.
The main novelties
The AGCOM Guidelines regulate the activities of influencers by providing measures regarding commercial communications and the protection of the fundamental rights of individuals and minors.
Commercial Practices
Regarding commercial practices, the AGCOM text refers to both the Consolidated Law on Media and Audiovisual Services and the aforementioned Digital Chart. Specifically, it establishes that:
- Influencers cannot use subliminal techniques , either in commercial communications or in the creation of informational content.
- As with advertising through other audiovisual media (such as radio and television), influencers are also prohibited from engaging in covert advertising. In this regard, reference is made to the Digital Chart regarding explicit commercial communication in content disseminated online: influencers must include, in the text accompanying the content or in a superimposed form, a statement that highlights the advertising nature of the content so that it is immediately apparent.
- Influencers must ensure that copyright and intellectual property rights are respected.
Violations of the provisions set forth in the Consolidated Law apply. For example, those who fail to explicitly highlight the promotional nature of content are subject to fines of up to €250,000.
In the area of commercial communications, the guidelines don’t add much to the measures already introduced with the Digital Chart, which were largely aimed at making promotional content explicit as a form of consumer protection. The main change is that these measures are now mandatory rules for all influencers, who are subject to sanctions if they fail to comply. This may seem like a minor point, but it represents a very important form of protection for the end user.
Protection of the person
As we have mentioned, the Guidelines also aim to provide rules aimed at protecting the fundamental rights of individuals and minors.
In this regard, AGCOM has established the following:
- Influencers may not post content that incites or provokes crimes.
- Influencers are required to ensure respect for human dignity and, therefore, may not publish content or expressions that may spread, incite, minimize, or legitimize violence , hatred, or discrimination. They may not offend the human dignity of any group of people, especially those belonging to minorities or discriminated against because of their distinctive characteristics.
- Content published by influencers must not contain elements that could lead to the exoneration of the perpetrator of violence or an act of hate, nor to the co-responsibility of the victim of violence.
- Influencers are required to comply with regulations regarding the protection of minors, ensuring, therefore, that they do not publish content that is harmful to the physical, mental, or moral development of minors.
- When uploading content, influencers are required to use the features provided by the platforms to flag content that is inappropriate for minors and/or potentially harmful to minors.
- Influencers must commit to ensuring truthful presentation of facts and verifying the accuracy of the information they publish and share through their content. They are also required to take action to combat online misinformation.
Here too, violations of the provisions will be subject to the penalties set forth in the Consolidated Law. For example, those who fail to remove published content that does not comply with the current Guidelines, and those who fail to comply, face fines ranging from €30,000 to €600,000.
The most significant innovation in the guidelines is the provision for the protection of fundamental human rights . Finally, respect for individuals and the protection of minors are no longer left to the creator’s common sense; instead, there are rules that regulate the protection of individuals’ fundamental rights.
The Code of Conduct
The Guidelines also provide for the launch of a technical committee to develop a Code of Conduct that outlines the measures influencers must adhere to.
The Code of Conduct must define additional measures to ensure that influencers comply with the above regulations. Furthermore, it must provide transparency systems; specifically, the sender or creator of the video must be clearly identifiable, and their contact information must always be available.
Professionals working in the sector are invited to participate in the technical committee for drafting the code of conduct; not only influencers, but also those who act as intermediaries between influencers and brands, and all others who operate in the digital marketing sector in various roles.
Conclusion
The approval of the new AGCOM Guidelines represents a significant step forward in regulating the influencer marketing sector , offering greater protection to both consumers and influencers themselves. These rules provide clarity and transparency, establishing mandatory rules for influencers and sanctions for those who violate them.
Specifically, the Guidelines address both commercial practices and the protection of fundamental human rights and those of minors , ensuring a safer and more responsible online environment. The launch of the technical committee for drafting the Code of Conduct promises further measures and transparency in the sector, involving all stakeholders.
Ultimately, these Guidelines mark an important milestone toward greater regulation and accountability in the world of influencer marketing.
