IAP Digital Chart updated: new rules for influencers

On 1 June 2023, Istituto dell'Autodisciplina Pubblicitaria (IAP) published an updated version of the Digital Chart Regulation, a document on the recognizability of marketing communication distributed over the internet, containing guidelines and transparency criteria addressed to operators and users including so-called influencers.

The updated version introduced a number of significant changes to practices relating to endorsement initiatives for brand and product promotional purposes.

Firstly, with reference to the recognizability of marketing communication, an obligation has been introduced to make the promotional purpose of a message manifest also in the case of sharing or 'reposting' of the message on other online platforms and interfaces, including social media. The IAP, in this regard, points out that it is always good practice to ensure that the tags used, in the original content, remain when that content is shared or disseminated on different platforms and that the disclosure therefore does not disappear.

The new regulation then recognises the possibility that influencers can be not only human, but also virtual, with similar transparency obligations.

Furthermore, the updated document regulates the so-called 'call to action', i.e. the invitation to perform a certain action (such as an invitation by an influencer to his/her followers to publish content with tags and hashtags). In particular, the influencer must exhort users to disclose the promotional nature of the content linked to a brand/product/service published by these users at the invitation of the influencer. This provision is in line with AGCM guidance (see the British Tobacco case here).

With reference to the occasional sending of its products to the influencer, for free or for a nominal sum, it is obligatory for the influencer to insert a disclaimer in their posts or in other communications distributed on the net that mention or represent such products, the equivalent of "product sent by the ... brand".. The advertiser must inform the influencer, clearly and unequivocally, at the time of sending the product, of the existence of the obligation to include such a disclaimer (and its liability is limited to such notice).

Finally, with reference to discount codes and to the practices of so-called 'affiliate marketing', through which the influencer is rewarded with a commission and/or other advantage, for having provided a specific result to an advertiser, the Regulation obliges the influencer to insert a clear statement within the published contents that contains the discount code or the affiliate link, that makes clear the promotional purpose of the same.