Influencers and the Law

The legal framework

There is no EU influencer law yet. Influencer marketing is advertising, and the general rules apply to whoever posts it and whoever pays for it.

The rules today

The Unfair Commercial Practices Directive, in Belgium Book VI of the Code of Economic Law, treats a failure to identify the commercial intent of a message as a misleading omission (Article 7(2)). Its blacklist bans paid editorial content that is not clearly marked as such and posing as a consumer (Annex I, points 11 and 22). Payment does not have to be money: free products or a discount code count too. Platforms covered by the Digital Services Act must offer a tool to flag a post as commercial (Article 26(2)), and video creators may also fall under the audiovisual media rules. Some sectors, such as alcohol or gambling, carry their own advertising limits.

What the Digital Fairness Act would change

The Digital Fairness Act, which the Commission proposed on 11 November 2026 (press release), would turn these principles into explicit rules. It is still a proposal; once adopted, it would apply 12 months after entering into force.

• A definition. Influencer marketing is a practice where a trader uses its popularity with an audience to promote products, directly or indirectly, in exchange for payment (Article 3(15)). The recitals count gifts and other benefits with an asset value as payment. Personal and editorial content without payment stays outside the disclosure duty.
• Fixed wording. Each commercial post must disclose its commercial intent clearly, prominently and unambiguously, with the words "advertisement" or "commercial collaboration" (Article 11(1)). The recitals add that the label goes at the start, stays for the whole post and is in the post's language. On platforms, the DSA tool must be used (Article 11(2)).
• Minors. No direct calls on minors to buy or to pester their parents, no hiding the commercial purpose, especially in content featuring children, and no suggesting that a product suits minors when it does not (Article 11(3)).
• Banned products. No influencer marketing of products that may not be advertised to consumers, or of dangerous products under product safety law (Article 11(4) and (5)).
• Brands and agencies. Any trader using an influencer must ensure, by contract or otherwise, that the influencer complies (Article 11(6)). The recitals are explicit: the contract does not shift the brand's own liability, and with gifts the brand should still brief the influencer and check the disclosure.
• Privacy. An influencer who does not sell directly no longer has to publish a geographical address (Article 7(4)).

In practice

A skincare brand sends a creator free products and a discount code. Today, a post with the code and no clear label is a misleading omission. Under the proposal the post would need "advertisement" or "commercial collaboration" up front, and the brand would answer for it too.

An agency runs a campaign with ten creators. It should brief each one in writing on the disclosure rules, keep evidence of the checks it ran and have a takedown route in every contract.

What the contract should cover

• Deliverables and approval: platforms, number of posts, timing, prior review and how long silence counts as approval.
• Disclosure: the exact label, its placement, the platform tool, and a duty to correct or remove a post quickly.
• Claims: only truthful, substantiated statements, and the brand's list of claims that may not be made.
• IP and image rights: who owns the content, or the scope and term of the licence, extra pay for paid ads, use after the contract ends, moral rights and the influencer's name and likeness.
• Exclusivity: the competing category, the term and any period after the end, kept proportionate.
• Conduct and termination: a morality clause, termination for breach or reputational harm, and what happens to live posts.
• Payment: fixed fees, milestones, performance bonuses, affiliate commission, expenses, taxes, and whether products are kept.
• Data: roles under the GDPR for giveaways and audience data, and no targeting of minors.
• Minors: who signs and consents when the creator is a minor, and limits on content featuring children.

Frequently asked questions

Is "#ad" at the end of a caption enough?

Today it is weak if the label is hidden or appears only after "see more". Under the proposal the wording would be "advertisement" or "commercial collaboration", shown from the start.

We only sent free products. Are we responsible?

Under the proposal, yes. Gifts count as payment, and the brand must take reasonable steps to secure disclosure even without a contract.

Can the contract put all liability on the influencer?

Not toward authorities or consumers. Between the parties you can agree indemnities, and the proposal gives a trader held liable a right of recourse against the partner who caused the breach (Article 36).

How this connects

The International Trademark Association's Emerging Issues Committee published Influencers: A Legal Primer in October 2025. It covers when content counts as advertising, the self-regulatory guidelines, the US and French rules and practical disclosure wording. Bart Lieben of Pitch worked on the model influencer agreement in its Annex I: deliverables and content review, fees and incentives, IP and image rights, exclusivity, termination, compliance and confidentiality. It is a good starting point. For the wider consumer package, see also the Consumer Law Simplification Directive. We draft and review influencer and agency contracts as part of commercial contracts and transactions and trademark licensing, using Contract Review and Document Studio, where our own AI does the first pass and an attorney reviews the result.