Edited by Paola Furiosi, Federica Pezza, Giulia Gialletti
In the constant evolution of the digital media landscape, the figure of the so-called influencer, capable of reaching millions of people through the use of social media, has taken an increasingly prominent role, radically transforming marketing and communication strategies and raising ethical and legal issues at the same time, with particular attention to the transparency and clarity of commercial communications.
In response to these new challenges, the Italian Authority for Communications Guarantees (AGCOM), after having held a public consultation last summer with the aim of clearly defining the responsibilities and rules applicable to influencers, approved on January 10 the new Guidelines (the “AGCOM Guidelines“) aimed at decisively regulating the activity of influencers, thus marking a turning point for digital communication in the Italian landscape.
In particular, the AGCOM Guidelines are intended to ensure respect, by the same influencers, of the provisions of the Italian Consolidated Text on Audiovisual Media Services (“TUSMA“), thus aligning Italy with the regulatory trends of other EU countries; in France, indeed, on June 9, 2023, Law No. 2023-451 was introduced for the regulation of the activities of the influencers.
Among the highlights of the AGCOM Guidelines are:
- Firstly, the regulatory definition of “influencer“ (also called in common language “vlogger”, “streamer”, “creator”, “uploader“) according to which are such those who “create, produce and distribute audiovisual content to the public, on which they exercise editorial responsibility, through video sharing platforms and social media“, and therefore those who carry out an activity comparable or similar to that of the providers of media services within the Italian jurisdiction and who cumulatively respect the requirements indicated in the AGCOM Guidelines themselves (for example, inter alia, the fact that the service offered constitutes economic activity as provided for by articles 56 and 57 of the Treaty on the Functioning of the European Union).
- Secondly, referring to the recipients of such a measure, within the broader category of influencers, the AGCOM Guidelines are particularly aimed at the so-called “big influencers“, who reach, among other things, at least one million followers on various platforms or social media they operate on and have exceeded on at least one platform or social media a value of engagement rate average equal to or greater than 2% (with at least one million followers and a engagement rate equal to or greater than 2%).
- Moreover, a fundamental aspect, as well as the common thread of AGCOM’s intervention, is the strengthening of the obligation to make clear the advertising nature of the advertised content. Although this is not an absolute novelty, given the presence of similar regulations in the Italian Consumer Code and other initiatives (think for example of the Digital Chart developed by the Italian Advertising Self-Regulation Institute), the AGCOM Guidelines further emphasize this need. The influencers, in fact, in accordance with the provisions of articles 43, 46, 47 and 48 of the TUMSA, will be required to comply with the rules on commercial communications, teleshopping, sponsorships and product placement, including the prohibition of hidden advertising.
- In more detail, the AGCOM Guidelines provide that certain provisions of the TUMSA are to be immediately applicable to influencers, taking into account the specific characteristics of the activity carried out, i.e., the dissemination of self-produced audiovisual content, such as provisions to protect general principles of information, fundamental rights of the individual and minors, as well as rules on commercial communications. Furthermore, influencers are called to respect rules about transparency in commercial communications and, above all, to avoid the use of subliminal techniques both with regard to the creation of informative and/or entertainment content and concerning the commercial communications themselves. Similarly, influencers are required to ensure compliance with provisions on the protection of copyright and intellectual property.
- Finally, in the same direction, the AGCOM Guidelines provide for the establishment of a technical table for the adoption of a code of conduct specifically for influencers, also involving entities that, while not falling within the regulatory and regulatory perimeter of the Italian Authority, act as intermediaries between the brands and the influencers themselves, in order to create a clear and shared reference framework for all parties involved. In such a scenario, AGCOM is also called upon to monitor and verify that what is provided by the AGCOM Guidelines and the code of conduct is implemented effectively and correctly, providing, in case of violation, the application of the sanctions contained in the TUMSA.
The methods and consequences that will be suffered by influencers and content creators following the application of TUSMA against them remain for the moment still to be analyzed, since equating these latter to providers of audiovisual services is not immediate and raises complex issues. If, in fact, on the one hand the importance of such measures seems indisputable, representing a necessary step towards the professionalization of the activity of influencers after years of relative regulatory void, on the other hand industry associations such as the Italian Association Content & Digital Creator (AICDC) express concerns, requiring the involvement of the same social platforms in the definition of shared rules.
The AGCOM Guidelines represent a significant step towards a growing regulation of the digital sector. As the sector adapts to these new rules, it becomes clear that we are approaching an era in which online activity will be subject to standards and expectations similar to those of traditional media, marking a fundamental evolution in the management and perception of digital. Certainly, however, the new regulatory framework, by establishing the scope of application for the definition of influencers and the establishment of a technical table for a code of conduct, aims to ensure greater transparency and accountability in the world of influencer marketing, addressing the ethical and legal challenges raised by the evolution of this rapidly growing sector.
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