Clifford Chance

Influencer marketing is a relatively new area and different jurisdictions have adopted different (and inconsistent) regulations. We have already compared the regulatory situation in the UK and Germany, and now we turn to Italy.

While the UK regulator published its "Influencer's Guide to making clear that ads are ads" a while ago, no specific or binding statute applies in Italy. Nevertheless, the prevalence of marketing that uses social media's public figures is apparent to the public authorities. The key body to consider in relation to influencer marketing in Italy is the Italian Competition Law Authority, that supervises also consumer protection matters, (Autorità Garante della Concorrenza e del Mercato, the "Authority"), which aims to ensure the fairness of advertising campaigns published on social media platforms.

The Authority's initial investigations into influencer marketing

In 2017, the Authority investigated certain practices related to influencer marketing for the first time. It defined this as the practices carried out by "well-known web users with a large number of followers and capable of influencing the public's preferences and therefore of creating a marketing effect by supporting certain brands, without clarifying in a clear and undoubtedly manner the advertising purpose".

At first, the Authority chose to adopt an educative and supportive approach, meaning that before imposing a sanction, it liaised directly with the influencers and the brand owners through a moral suasion procedure. In a nutshell, the addressees of the moral suasion were informed that the Italian Consumer Code (Codice del Consumo) provides for a general ban of misleading advertising, which also applies to advertising on social media networks. Although the moral suasion procedures involved only certain influencers and brand owners, the Authority outlined the need for transparent social media marketing communications. After this, certain influencers shared Instagram stories and other similar content explaining to their followers (and their peers) marketing communications must be fair and not misleading, including those on social media.

The Authority's Injunctions

Following the first wave of moral suasions, the Authority launched a number of investigations and ended up imposing certain remedial actions upon both brand owners and influencers.

The first case – which remains the leading case in Italy – dates back to 2019 and involved luxury fashion brand and the airline and a handful of well-known Italian influencers. The influencers published pictures and videos of themselves on social media wearing the fashion capsule created by the designer in partnership with the aviation company. It is interesting to note the Authority's position not only towards the influencers and the main brand owner involved, but also with regards to the duties of any brand owners who may be connected to the collaboration (i.e. through licensing their brand), but who may not be directly involved in the marketing campaign.

In this case, the Authority found that the aforementioned practices may represent a breach of the ban on misleading advertising due to the following: (i) the emphasis on the brands in the online content and (ii) the fact that the advertisements (if they are so categorised) would not have been recognised as such by the consumers since the influencers did not label the posts and shared the content organically.

Notably, the Authority did not ascertain whether a breach of regulations occurred in the end and instead used its discretion to approve the remedial actions proposed by the parties involved. In particular:

• the aviation company undertook (i) to adopt specific guidelines ensuring transparency in its marketing communications, (ii) to include those guidelines in any agreement with influencers, including details of the influencers' obligations and the penalties in case of breach and (iii) to include a contractual clause in all licensing agreements for marketing purposes whereby the commercial partner undertakes to adopt any and all necessary measures to avoid misleading advertising practices through influencer marketing (with a related penalty clause);
• the fashion brand undertook to include the following in all its influencer agreements: (i) a clause outlining the influencers' duty to comply with the principle of non-misleading advertising; (ii) in case of breach, a penalty of at least 10% of the fees provided in the agreement and (iii) the right of the brand owner to terminate the agreement if the influencer does not remedy the breach within five days.
• The Authority underlined the brand owners' duty to monitor the influencers' behaviour and the influencers undertook to show clear and specific labels in their posts and social content published in collaboration with any brand owner for marketing purposes.

The Authority adopted the same approach in a number of subsequent cases, providing further useful tips for brand owners.

In 2019, following a case involving a leading pasta producer and certain so-called micro-influencers, the Authority provided additional insights on the content of the guidelines to be adopted by brand owners and included in the influencer agreements. The guidelines regulate the influencers' duties whether they are hired by an agency or directly by the brand owner. In the case of the former, the agreement between the agency and the brand owner shall include (i) the influencer's undertaking to comply with the guidelines and (ii) the agency's duty to monitor the influencer's behaviour.

When it comes to an influencer's duties, besides the duty to disclose the advertising purpose, they are also prevented from re-posting content from the brand owner if this is not expressly permitted in their agreements.

Further, the Authority recently found that derivative posts created by an influencer's followers as a result of a "call to action" may be considered misleading advertising. As part of a social media campaign, an influencer may ask his or her followers to re-post or post new Instagram content mentioning and tagging the influencer and the brand, and the influencer agrees that he or she will re-post the followers' contents. In such a case, the Authority held that a fair remedial action, besides the aforementioned ones, would be to adopt guidelines which also regulate these "derivative" posts  by requiring that the influencers inform their followers that if their participate, their posts/re-posts need to include the label "#adv" or "#sponsored by", otherwise that follower will lose the right to receive any reward (including the re-post of their content on the influencer's account).

Italy’s Advertising Self-Regulatory Institute

It is also worth mentioning Italy’s Advertising Self-Regulatory Institute (Istituto dell'Autodisciplina Pubblicitaria, the "IAP"), who, along with some of the most influential Italian business players, adopted the Digital Chart Regulation on the Recognizability of Marketing Communication distributed over the Internet in 2017, which became binding for all members of the IAP in 2019.

In a nutshell, the IAP clarified that the general principles related to transparent advertising apply to online marketing communications too, providing a list of scenarios where advertisements will be unequivocally recognizable as such. In this regard, the IAP aligns with the Authority, as regardless of the form of the advertising and of the contractual agreement between the brand owner and the author of the web content, the content must be labelled as an advertisement with, for example, hashtags such as #adv, #suppliedby, or #advertising. The IAP held that tagging the brand owner and using certain brand related hashtags is not sufficiently clear labelling.

So far, IAP has adopted several decisions towards Italian influencers and brand owners, by requiring removal of the non-compliant content. Despite its continuous activity, the IAP is limited as it functions as a private, self-regulatory body. Therefore, it cannot impose sanctions and its decisions are not binding upon entities that are not IAP members, nor those that have not agreed to comply with its regulations when entering into a commercial agreement. Nevertheless, several commercial players have joined the IAP, and its powers include ordering the removal of the non-compliant content and, in general, IAP's principles are often followed by Court in matter related to advertising.

Conclusion

Although certain regulation proposals have been put forward, Italy has yet not adopted a specific regulation for online marketing communications. So far, the Authority adopted a business-oriented approach, using its moral suasion to "influence the influencers" and, in a later moment, encouraging remedial actions to be extended also to the brand owners. This approach aims at developing good practices among commercial players.

Currently, when entering into an agreement with an influencer, brand owners need to that ensure that influencers undertake to comply with good practices for online marketing, with penalties in case of breach.

To conclude, in comparison to other jurisdictions, Italy has not taken a heavy-handed approach with regards to the publication of online marketing communications and yet it is still clear to commercial players which behaviours they should avoid. Such a "soft" scenario in terms of rules applicable to influencers will likely to be impacted by the Digital Services Act, if the current draft will be approved as is.