The Case for Increased Responsibility and Liability of Brands in Social Media Influencer Marketing

The rise of social media influencer marketing has reshaped the landscape of brand-consumer interactions. This surge, however, has not been without its concerns. Questions of transparency, consumer protection, and the necessity of regulatory measures have loomed large over this industry. While scholarly discourse has predominantly scrutinised influencer regulation, a glaring gap remains in understanding the responsibilities incumbent upon brands. My article, recently published in the Journal of European Consumer and Market Law, ventures into this uncharted territory, honing in on brands’ engagements with influencers and dissecting their legal obligations amidst the evolving influencer marketing ecosystem.

The regulatory framework surrounding influencer marketing forms the cornerstone of ensuring ethical practices in this domain. Delving into the intricate labyrinth of regulations, the article first examines the Unfair Commercial Practices Directive (UCPD), a linchpin in delineating disclosure requirements for influencers and brand responsibilities. From the EU to national jurisdictions like Germany, Luxembourg, and the UK, the article scrutinises the application of UCPD provisions, shedding light on the enforcement mechanisms and the evolving jurisprudence. Moreover, it unveils the pivotal role social media platforms play in governance through private regulations, spotlighting the nuances of content moderation policies and their impact on influencer conduct. Here, the article examines how six social media platforms govern the liability and responsibility of influencers and brands regarding influencer marketing activities.

With scant literature delving into the regulatory obligations of brands in influencer marketing, the inquiry dives deep into unearthing their legal responsibilities. From joint liability with influencers to the perils of contractual exclusion clauses, the article dissects the intricate web of legal obligations incumbent upon brands. Furthermore, it unpacks the nuances of brands' editorial control over influencer content and their obligations regarding promoting regulated products, navigating through real-world cases and legal intricacies. As the regulatory landscape underwent some recent changes, including the DSA in the EU and Brexit in the UK, the analysis illuminates the evolving sanctions for UCPD violations and platforms’ pivotal and increasing role in enforcing compliance.

Amidst the regulatory labyrinth, a clarion call emerges for increased brand responsibility and liability in influencer marketing. Central to this advocacy is the imperative of transparency, with brands assuming a proactive role in guiding influencers on disclosure practices because they know their products best. The article underscores the disparities in bargaining power between brands and micro-influencers, advocating for clear guidelines and proactive engagement in the form of legal advice from brands, as partly adopted in the recent French Influencer Law. Moreover, the article unpacks the benefits of heightened brand liability and responsibility, from fostering consumer trust to enhancing brand reputation. Brands should embrace this ethos of responsibility and pave the path towards an ethical and accountable influencer marketing landscape. As consumer trust custodians, brands should take a proactive stance in guiding influencers and championing ethical practices.

In this spirit, the article calls upon policymakers and industry stakeholders to recognise the necessity of increased brand responsibility and liability.

Felix Pflücke is a Postdoctoral Research Fellow in Law at the University of Luxembourg and a Stipendiary Lecturer in Law at the University of Oxford.