Nuove regole sugli influencer: AgCom approva linee guida e avvia un tavolo tecnico

On January 16, 2024, AgCom published the Guidelines aimed at ensuring compliance by influencers with the Consolidated Law on Audiovisual Media Services (Legislative Decree No. 208 of November 8, 2021) and has set up a special technical panel.

The Guidelines are the result of a public consultation launched in 2023 with the aim of defining the boundaries of commercial communications propagated through social media by influencers to more effectively protect the fundamental rights of users.

According to the definition given by AgCom, influencers are those who carry out an activity similar - or at least comparable - to that of audiovisual service providers, as such subject to TUSMA, upon the cumulative occurrence of a number of circumstances including:

• the main purpose of the service offered, consisting of the provision of content, created or selected by the influencer himself or herself, that informs, entertains or is likely to generate income either directly, in execution of commercial agreements with producers of goods or services, or indirectly, in application of the business enhancement agreements applied by the platform or social media used, and
• the fact that the service is accessible to the general public and reaches a significant number of users in the Italian territory.

The Guidelines also provide the criteria for distinguishing influencers who professionally carry out activities of creation, production and dissemination to the public of audiovisual content, identifying them as those who reach at least one million followers on the various platforms or social media on which they operate and who have exceeded on at least one platform or social media an average engagement rate value in the last six months of 2 percent or more (i.e., who have generated reactions from users, through comments or likes, in at least 2 percent of the content published).

The Guidelines constitute another step forward in the fragmentary regulation of the matter, which has already been addressed by the Institute of Advertising Self-Regulation (IAP) with the Digital Chart Regulation and by the Italian Antitrust Authority in the form of best practices, and yet they have the merit of configuring an actual editorial responsibility upon the influencer on the creation, selection and organization of content, with respect to the principle of fair information, commercial communications and product placement, to make it transparent to the public the promotional purposes that may be pursued, with the aim to protect minors and the fundamental rights of the person.