AGCOM: New guidelines for influencers

The Authority for Communications Guarantees (AGCOM), published the new guidelines for influencers, as a result of the public consultation initiated by Resolution No. 178/23/CONS. The guidelines were aimed at ensuring that the provisions of the Consolidated Audiovisual Media Services Act (Legislative Decree No. 208 dated 8 November 2021, no. 208) were complied with and the measures necessary to ensure their uniform and consistent application. There was particular reference to compliance with the principles of transparency and accuracy of information, the application of the regulations for the protection of minors and fundamental personal rights, and provisions on commercial communications and product placement aimed at making any promotional purposes, transparent to the public.

The new guidelines are targeted at all those entities that make use of audiovisual content, including commercial communications, on the basis of agreements of any kind in return for payment or provision of goods or services that cumulatively:

a. reach at least one million followers, resulting from the sum of the subscribers on the social media platforms on which they operate;

b. have published, in the year preceding the survey, at least 24 pieces of content advertising;

c. have exceeded, on at least one social media platform, an average engagement rate of 2% or more, in the last 6 months.

The following provisions of the Consolidated Act are applicable to these entities:

- general principles referred to in Article 4, paragraph 1

- general principles referred to in Article 6(2)(a) regarding information, insofar as they are applicable;

- the provisions protecting copyright referred to in Article 32;

- the provisions protecting the fundamental rights of the individual, minors and the values of sport referred to in Articles 30, 37, 38 and 39 and the relevant implementing resolutions adopted by the Authority;

- the provisions on commercial communications referred to in Articles 43, 46, 47 and 48.

In particular, content disseminated by influencers:

a. must not contain any incitement or provocation to commit crimes or an apologia for the same;

b. must guarantee respect for human dignity and must not publish content or images that are likely to spread, incite, propagate or justify, minimise or otherwise legitimise violence, hatred or discrimination and offend against human dignity towards a group of persons or a member of a group on the basis of one of the grounds referred to in Article 21 of the Charter of Fundamental Rights of the European Union. This is especially significant in the case of minority groups or groups discriminated against on account of their distinctive characteristics. Furthermore, where appropriate,, they shall comply with the principles laid down in the recommendation on the fair representation of the image of women;

c. must not contain elements likely to lead to either the perpetrator being held responsible or to the victim being held responsible for violence, hatred, discrimination or injury to human dignity or any other form of secondary victimisation;

d. must comply with the regulations on the protection of minors by ensuring that they do not publish content that is seriously harmful to the physical, psychological or moral development of minors, adopting reporting mechanisms for potentially harmful content.

Moreover, influencers must avoid resorting to subliminal techniques, both with regard to the creation of informative or entertainment content and with regard to commercial communications. Influencers must also comply with the rules on commercial communications, teleshopping, sponsorships and product placement, set out in articles 43, 46, 47 and 48 of the Consolidated Text, the prohibition of surreptitious advertising, as well as the implementing provisions adopted by the Authority with specific regulations, also recognising the rules set out in the Digital Chart Regulation on the recognisability of commercial communication disseminated through the Internet promoted by the Advertising Self-Discipline Institute. In the case of content with product placement, influencers shall include in the text accompanying the content, or in an overlay within the content itself, an inscription highlighting the advertising nature of the content in an immediately recognisable manner.

In addition, influencers must undertake to ensure the truthful presentation of facts and events and to verify the correctness and objectivity of the information, also by mentioning the sources used, and to implement actions to counter online disinformation within the framework of the initiatives proposed by the Technical Table.

Influencers guarantee compliance with the provisions on the protection of copyright and intellectual property.

In the event of violating the aforementioned provisions, pecuniary sanctions ranging from 10 thousand to 250 thousand euros regarding advertising transparency and from 30 thousand to 600 thousand euros regarding obligations to protect minors will apply.

The AGCOM also calls for the identification of one or more codes of conduct in order to define further measures and technical instruments aimed at ensuring compliance with the provisions of the Consolidated Act by influencers.

The AGCOM clarifies that the provisions of Articles 41 and 42 of the Consolidation Act remain applicable to those operating in a less continuous and structured manner. In relation to intermediaries between influencers and companies (PR agencies, media centers, creative agencies, talent managers, multi-channel MCN networks), to whom the provisions of the Consolidation Act are not applicable (at least for the time being), the Authority recalls how they are still responsible for drafting contracts that ensure the transparency of communication between the client and the hired influencer.

Within 60 days from the publication of the AGCOM's resolution, a Technical Table will be set up to adopt the code of conduct and the measures to be applied to signage, with the participation of influencers' associations, representatives of video-sharing platforms, social media, influencer marketing agencies and in general those who act as intermediaries between the influencers and companies.

The activities of the Technical Table will be concluded within 120 days of its establishment and will be the subject of periodic reports to the Authority's Board.