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26 November 20183 minute read

Influencers watch out: A new era of digital communication in Italy

Digital communications and influencer marketing are a hottopic worldwide in the fashion industry and, when it comesto fashion, Italy is always up to date.

In 2016 the Italian Advertising Self-Regulatory Institute(IAP) launched the so-called Digital Chart, which is a codeof conduct for bloggers, vloggers, celebrities and influencerson how to present online advertising.

The Digital Chart requires that online advertising complywith IAP’s Self-Regulatory Code (the Code) and makeevident its promotional nature, by using different formatsfor making required disclosures depending on the means ofcommunication used (eg, whether it is a video on YouTube,an article on a blog, a post on Facebook, or a selfie onInstagram). For instance, on Instagram it is now common forthe most famous Italian influencers’ profiles to incorporatehashtags such as #adv, #sponsoredby, #productprovidedbyand/or the tag of the sponsoring brand’s Instagram profileto disclose in a clear way the commercial relationshipbetween the influencer and the brand.

A significant limit of the Digital Chart as an industry self-regulatorycode is that for IAP to have jurisdiction over abrand, the brand in question must have accepted, directlyor indirectly, the Code. Furthermore, it is not possibleto take action against an influencer for failure to complywith the Digital Chart before the IAP unless the influencerconsented to jurisdiction of the IAP in a written agreementbetween the influencer and the brand.

A recent case highlights these limits. It involved a picturepublished by a famous Italian singer to Instagram Stories,displaying some cars and emphasizing some of theirfunctions during an official event sponsored by the carmanufacturer. The picture posted to Instagram Stories bythe singer did not include any disclosure that the post wassponsored or paid for by the manufacturer. The IAP foundthat the singer’s Instagram Story was an endorsement ofthe brand that failed to comply with the Code. Becausethe parties had entered into a sponsorship agreement thatrequired the singer to attend the event and to promotethe event using the singer’s social media accounts, the IAPfound that the post required a disclosure. The IAP indicatedthat the relevant factor in the analysis is how the post isperceived by the public and not the subjective intent of theperson publishing the post.

A similar decision was recently issued regarding two postsmade by a fashion influencer in Italy. The first post featuredseveral makeup products and the second showed theinfluencer applying a blush produced by the sponsoringbrand. Neither post disclosed that the influencer had beencompensated by the brand. The makeup brand attemptedto defend the post by asserting that the photograph atissue included third-party products and that it no longermanufactured the blush used by the influencer, such thatthe post could not be considered to have any commercialpurpose. However, as in the preceding case, becausethe makeup brand and the influencer had entered into asponsorship agreement for the period of time in which theposts were published, IAP still found that the posts had apromotional nature and that such nature was not madeclear to the public.

These decisions have inaugurated a new era in digitalcommunication and show that influencer marketing is in thespotlight and that fashion brands can no longer ignore thelegal implications of their marketing activities.

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