Navigating Influencer Marketing Laws: What You Need to Know

Whether you’re an influencer or a marketer promoting a brand, you must understand influencer marketing laws and best practices to ensure you’re not jeopardizing your reputation or risking fines and other penalties. The United States Federal Trade Commission (FTC) and other rule-making bodies around the globe require businesses and influencers who work with them to disclose these relationships to prevent fraud or deception when marketing to consumers.

By using best practices to ensure transparency in influencer marketing campaigns, all parties involved demonstrate truth in advertising. Brush up on these influencer marketing laws and guidelines to stay in the know about the ever-evolving influencer marketing industry.

Federal Trade Commission (FTC) Guidelines

As the governing body of trade regulation in the United States, the FTC’s mission is to protect the public from deceptive or unfair business practices and unfair methods of competition. In addition to providing information to help consumers spot, stop, and avoid scams and fraud, the FTC also creates and shares disclosure guidelines for social media influencers, brands and other businesses. 

Disclosure requirements

Depending on your role in online marketing, you’ll want to review the FTC’s:

• Disclosures 101 for Social Media Influencers 
• Guides Concerning Use of Endorsements and Testimonials in Advertising 

While the first brochure gives influencers tips on when and how to make good disclosures, the latter provides marketers, brands, and businesses with new or revised principles, examples, and definitions of legal terminology.  

Examples of proper disclosures

The responsibility of proper disclosures falls on the individual influencer when posting and on the business when the content creator’s post is sponsored in some way by the brand.

Influencers who have any financial, personal, employment, or family relationship to the brand (including gifts instead of payment) must disclose their tie with clear wording such as “ad,” “advertisement,” or “sponsored”— with or without hashtags. Also acceptable is something straightforward, such as “Thanks to Nike for the free sneakers” or “Nike Ambassador.”

For brands, the disclosures can be more complicated, although best practices suggest that endorsements, testimonials, and reviews be clearly labeled. 

Marketers need to review the FTC’s examples, as there are plenty of unique circumstances in which no clear verbal or written endorsement is present. However, the implication could still be that the poster endorses the brand featured, such as when the brand’s name or logo is visible.

Consequences of non-compliance

Influencers and brands can face repercussions from the FTC depending on the type of non-compliance. These can range from simply being required to remove content to being fined thousands of dollars. 

In addition, the FTC can prohibit one or both parties from engaging in influencer marketing in the future, which could create significant long-term damage to both reputations and profits.

Advertising Standards Authority (ASA) Regulations

As the U.K. equivalent to the FTC, the Advertising Standards Authority ensures that advertising in the media plays by the rules. The self-regulatory, non-statutory organization doesn’t interpret or enforce legislation, but its sister organization, the Committee of Advertising Practice (CAP), is responsible for writing the Advertising Codes.

Overview of ASA regulations

The ASA is an independent body investigating complaints and rules about whether an ad is misleading, harmful, or offensive to help maintain consumer confidence in advertising. Together, ASA and CAP help to ensure that content is labeled as advertising when appropriate, and the partners’ website offers plenty of free resources to help influencers and marketers ensure they’re aware of — and following — proper procedures.

Recent ASA rulings

Curious what kind of rulings the ASA has made? Here’s one from December 2023:

• An influencer made a TikTok post about sea salt with health and nutritional claims that broke the rules by claiming to prevent, treat or cure human disease.

European Union (EU) Regulations

The European Union has some of the strictest regulations concerning influencer marketing to protect consumers from unfair and misleading practices.

General Data Protection Regulation (GDPR)

As an important component of EU privacy and human rights laws, the General Data Protection Regulation (GDPR) was enacted in May 2018. Its obligations also apply to organizations outside the EU that target or collect data from people in the EU. Violations can lead to massive fines, with some penalties reaching millions of euros.

ePrivacy Directive

Amended in 2009, the EU’s ePrivacy Directive offers rules for privacy and data protection, allowing EU member states to create their own laws based on the directive. Officially known as the Privacy and Electronic Communications Directive 2002/58/EC, the rules regulate everything from email marketing and data minimization to cookie usage and other data privacy. 

Impact on influencer marketing practices

Despite a lack of specific EU laws for influencer marketing, content creators promoting products and services under commercial partnerships are subject to the same laws outlining consumer protections and unfair commercial practices. However, the Digital Services Act and the Digital Market Act set out a new definition of illegal content relevant to influencers monetizing content.

Intellectual Property Laws

When it comes to U.S. laws on influencer marketing, content creators, brands, and businesses need to be aware of intellectual property laws. Designed to protect the rights of creators, the laws apply to various copyrighted material — including photographs, text copy, video, sound recordings, art, and other creative works — and protect against unauthorized reproduction, distribution, public display, and adaptation.  

Copyright infringement in influencer marketing

Without exclusive permission or acquiring proper licenses to use an image, video, or song in branded content, influencers and brands open themselves up to accusations of copyright infringement. This can result in harsh penalties (not to mention the potential for negative publicity) that range from removal of copyrighted material to hefty fines and even losing your social media accounts. 

Trademark issues and influencer endorsements

It’s vital that influencers not infringe upon existing trademarks while endorsing a product for a brand. To avoid doing so, content creators should always get permission (in writing) to use the trademark asset or disclose the rightful owner’s rights.

Protecting your content as an influencer

To help prevent the theft of their intellectual property, content creators can take steps to register their channel’s name as a federal trademark. That way, the influencer’s name for social media, videos, and blogs is synonymous with their content. This can also help protect the influencer from imposters trying to capitalize on the brand that they’ve built for themself.

Contractual Agreements

Of all the things influencers (and brand marketers who partner with them) can do to help buffer themselves from the negative consequences of a campaign gone awry is to get a signed agreement. By fleshing out the details of the campaign, partnership, and how any assets (including user-generated content) will be used later, both parties will have legal rights if a disagreement ensues. 

Although most brands will have contracts ready, be prepared to have someone with legal knowledge review the documents to ensure they’re not one-sided in favor of the business.

AI laws and rulings

From AI-powered photo-retouching tools that can detract from the authenticity of a post to photos, art, videos, and text created on artificial intelligence that’s been trained on other creators’ work, the lines of what’s legal and ethical are getting blurred. 

Regardless of whether you’re an influencer or a brand marketer, you’ll need to stay informed on the latest rulings and regulations related to using artificial intelligence. In the meantime, the safest route is to use AI for behind-the-scenes work, such as brainstorming keywords and phrases, generating campaign ideas, and only retouching parts of assets (such as deleting background visual distractions) that aren’t impacted by your message. 

As you navigate the rapidly changing rules and regulations of influencer marketing, it’s best to err on the side of caution. Follow best practices, put contractual obligations in writing, and do your part to focus on authenticity and transparency. 

Stay updated on changing U.S. laws and guidelines for influencer marketing — as well as the top regulating bodies around the globe — as they address emerging concerns to protect consumers.

Influencers:

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Marketers:

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