Towards Fairness in Digital Influencers' Marketing Practices

Abstract

The use of digital influencers to expand a brand and increase business is on the up. This creates new difficulties in ensuring consumer protection. Digital influencers provide reviews and endorsements of products usually through social networks and presented as a personal endorsement. Practices have been identified where digital influencers do not adequately disclose whether their review or endorsement has been paid for or if they have a financial relationship with an advertiser. This creates a lack of transparency and ability for the consumer to recognise content that is in fact paid for. This paper aims to analyse the best way forward to ensure sufficient consumer protection so that consumers can genuinely rely on digital influencer marketing posted on social media. The paper reviews the current legal tools available to deal with misleading digital influencer marketing practices and their shortcomings in tackling these issues. Especially the main legal framework, the Unfair Commercial Practices Directive, contains vital flaws. The paper examines possible solutions, including whether “the New Deal”, the latest EU reform in consumer protection, is able to offer a viable route. The paper concludes by recommending a number of changes in the legislative framework to ensure fairness in digital influencers’ marketing practices. One such solution could be to introduce a general and positive duty to trade fairly which could apply to all actors involved in digital influencer marketing.

Keywords: influencer, influencer marketing, consumer law, UCPD, Unfair Commercial Practices, e-commerce, fairness