Guidelines for influencers in Italy – the english translations

AGCOM Guidelines for Influencers – an english unofficial translation

ATTACHMENT A – resolution no. 7/24/CONS

GUIDELINES AIMED AT ENSURING COMPLIANCE WITH THE PROVISIONS OF THE CONSOLIDATED TEXT BY INFLUENCERS AND ESTABLISHMENT OF A SPECIFIC TECHNICAL COMMITTEE

[TOC]

Purpose of the Guidelines

1. The Authority has observed the growing dissemination of content published online, through video-sharing platforms and social media, by individuals, real or virtual, hereinafter referred to as “influencers” (also commonly referred to, for example, as “vloggers,” “streamers,” “creators,” “uploaders”), who have control over the creation, production, or organization of such content.

2. Influencers are understood to be those individuals who carry out activities analogous or otherwise similar to those of audiovisual media service providers under national jurisdiction, provided they cumulatively meet the following requirements:

• the service offered constitutes an economic activity within the meaning of Articles 56 and 57 of the Treaty on the Functioning of the European Union (TFEU);
• the main purpose of the service offered is the provision of content, created or selected by the influencer, which inform, entertain, or instruct and which are capable of generating income directly through commercial agreements with producers of goods and services or indirectly through the application of monetization agreements applied by the platform or social media used;
• the influencer has editorial responsibility for the content, which includes effective control over the creation, selection, or organization of the content itself;
• the service is accessible to the general public, reaches a significant number of users in Italian territory, has a significant impact on a significant portion of the public, and the content is disseminated through a video-sharing platform or social media service;
• the service allows content to be accessed on demand by the user;
• the service is characterized by a stable and effective connection with the Italian economy;
• the content is offered using the Italian language or is explicitly aimed at users in Italian territory.

1. The Authority, through these guidelines, adopted following the public consultation initiated by resolution no. 178/23/CONS, aims to identify the provisions of Legislative Decree no. 208 of November 8, 2021 (“Consolidated Text on Audiovisual Media Services” or “Consolidated Text”) that influencers are required to comply with and the necessary measures to ensure their uniform and consistent application, with particular reference to compliance with transparency and fairness of information principles, the application of rules on the protection of minors and fundamental rights of individuals, and provisions on commercial communications and product placement aimed at making any promotional purposes transparent to the public.

2. For the purposes of paragraph 2, and with particular reference to the adoption of technical measures and precautions, through these guidelines, the Authority intends to establish criteria to safeguard the interests protected by the legislation enacted by the aforementioned Legislative Decree no. 208 of 2021, as applicable to the specific case, as well as useful indications for the adoption of one or more codes of conduct through co-regulation procedures, as provided for in paragraphs 15 and following. To this end, a specific Technical Committee chaired by the Authority is established, according to the procedures indicated in Annex B to this resolution, which will draft the regulation for subsequent approval by the Authority.

Scope of Application

1. Given the peculiar nature of subjects qualifying as influencers and the audiovisual content disseminated by them, and the blurred line between individuals engaged in amateur or professional activities, it is appropriate to list certain elements that, in the initial application phase, allow, in accordance with principles and canons of proportionality, differentiation, and adequacy, the identification of influencers engaging in professional activities subject to the relevant provisions of Legislative Decree no. 208 of November 8, 2021. The subjects are distinguishable as follows:

(i) Influencers who propose audiovisual content having the characteristics defined by these guidelines including commercial communications based on agreements of any kind, in exchange for money or the provision of goods or services, which cumulatively:

a. reach a number of subscribers (the so-called followers) equal, in the initial application phase, to at least one million, resulting from the sum of subscribers on platforms and social media they operate on;
b. have published in the year prior to the survey at least 24 contents having the characteristics defined by these guidelines;
c. have exceeded at least on one platform or social media an average engagement rate value in the last 6 months equal to or higher than 2%;

(ii) subjects who operate less continuously and structured, and who do not reach the threshold established above for the number of followers and a significant engagement rate, to whom, on the other hand, the imposition of such obligations does not appear justified, without prejudice to the applicability to the contents published by them of articles 41 and 42 of the Consolidated Text.

1. The Authority therefore intends to identify the provisions immediately applicable to influencers falling under category (i), ensuring, however, not to foresee unnecessary obligations and burdens. The technical committee referred to in paragraph 15 further defines the necessary characteristics for the identification of professional influencers, also in relation to specific sectors of activity.

2. The technical committee identifies the methods of formation and publication of the list of subjects referred to in paragraph 5.

Immediately Applicable Provisions to Influencers

1. The Authority believes that, in light of the characteristics of the activity carried out, consisting predominantly in the dissemination of self-produced audiovisual content, the provisions of the Consolidated Text indicated below should apply to influencers at least:

• The general principles referred to in Article 4, paragraph 1;
• The general principles referred to in Article 6, paragraph 2, letter a), regarding information, as applicable;
• The provisions protecting copyright referred to in Article 32;
• The provisions protecting fundamental rights of individuals, minors, and the values of sport referred to in Articles 30, 37, 38, and 39 and the relevant implementing resolutions adopted by the Authority;
• The provisions regarding commercial communications referred to in Articles 43, 46, 47, and 48.

9. In particular, the contents disseminated by influencers:

a. must not contain any incitement or provocation to commit crimes or the apology thereof; b. must ensure respect for human dignity and not publish content or expressions likely to spread, incite, propagate, or justify, minimize, or otherwise legitimize violence, hatred, or discrimination and offend human dignity towards a group of people or a member of a group on the basis of any of the reasons listed in Article 21 of the Charter of Fundamental Rights of the European Union, especially in the case of minority groups or those discriminated against due to their distinctive characteristics. Furthermore, where applicable, they adhere to the principles set out in the recommendation on the correct representation of the image of women as identified in resolution no. 442/17/CONS; c. must not contain elements likely to result in the author’s deresponsibilization or the victim’s corresponsibilization of violence, hatred, discrimination, or violation of human dignity or any other form of secondary victimization; d. comply with the rules on the protection of minors, ensuring not to publish content severely harmful to the physical, psychological, or moral development of minors, as identified in resolution no. 52/13/CSP and adopting reporting mechanisms in accordance with the provisions of Article 9 of resolution no. 74/19/CONS for potentially harmful content. At the time of content upload, influencers use, where available, the features provided by the video-sharing platform to indicate that the content contains potentially harmful content for minors.

10. Influencers avoid the use of subliminal techniques, both concerning the creation of informative or entertainment content and regarding commercial communications.
11. Influencers comply with the rules on commercial communications, teleshopping, sponsorships, and product placement, as provided for in Articles 43, 46, 47, and 48 of the Consolidated Text, the prohibition of covert advertising, as well as the implementing provisions adopted by the Authority with specific regulations, also recognizing the rules specified in the Digital Chart Regulation on the recognizability of commercial communication disseminated through the Internet promoted by the Advertising Self-Regulation Institute. In the case of content with product placement, influencers include in the accompanying text or in overlay within the content itself a statement highlighting the advertising nature of the content in an immediately recognizable manner.
12. Furthermore, influencers undertake to ensure the truthful presentation of facts and events and to verify the accuracy and objectivity of the information, including by mentioning the sources used, as well as to take actions to counter online disinformation within the initiatives proposed by the Technical Committee.
13. Influencers ensure compliance with the provisions on copyright protection and intellectual property.
14. In the event of a breach of the above-mentioned provisions, the relevant sanctioning measure applies according to Article 67 of the Consolidated Text, without prejudice to what is established by Article 1, paragraph 31, of Law No. 249/97.

Essential Provisions of the Code of Conduct

1. Considering the peculiarity of the regulated activity, it is appropriate to identify through one or more codes of conduct the additional measures and methods by which influencers adapt their activities to ensure compliance with the provisions of the Consolidated Text applicable to them, as identified above.

16. The code of conduct must define the additional measures and instrumental technical precautions aimed at ensuring that influencers observe the provisions of Legislative Decree No. 208 of November 8, 2021, applicable to them, in accordance with the specific informative principles and criteria indicated in the following paragraphs and taking into account the specific characteristics of the individual service provided and the platform or social media that guarantee its dissemination.
17. The code of conduct must provide for systems of transparency and recognizability of influencers. In particular, the sender or creator of the video must be clearly identifiable, and contact information must be available, according to modalities to be established in the code of conduct.
18. The Authority will monitor to verify that the measures provided for in these guidelines and in the code of conduct are effectively and correctly implemented.

Final Provisions and Review Clause

1. The provisions of the Consolidated Text, including the definitions contained therein, in addition to guaranteeing appropriate protections to users, partially coincide with the terms and conditions already applied by video-sharing platforms and social media, with obligations of transparency and recognizability of commercial communications, and with the regulatory framework concerning consumer protection. The Authority reserves the right to review the criteria for qualifying influencers as providers of audiovisual media services following the first phase of application of these guidelines.

20. For video-sharing platform services, the provisions of Articles 41, 42, and 43 of the Consolidated Text continue to apply, as well as those contained in the Platform Regulation provided for in resolution no. 298/23/CONS and subsequent implementing regulations adopted by the Authority, as in this context, such platforms represent the means by which influencers make their content available to the public.
21. The Authority notes that within the broader scope of influencer activities, influencer marketing is a phenomenon that is gaining considerable momentum. However, this phenomenon is not limited to influencers alone but involves a set of subjects that do not fall within the subjective scope of application of the Consolidated Text. By way of example and not exhaustively, specialized agencies and, in general, intermediaries between influencers and companies, such as PR agencies, media centers, creative agencies, talent managers, multi-channel networks (MCNs), which act as third parties, providing services such as audience expansion, content scheduling, collaboration with creators, digital rights management, monetization, and sale of advertising content. Often, it is the responsibility of these agencies to draft contracts and ensure transparency of communication between the client and the engaged influencer. However, such subjects are not attributable, for the purposes of these guidelines, to the scope of application of Legislative Decree No. 208 of November 8, 2021. Therefore, the Authority reserves the right to consider the inclusion of these subjects among the recipients of these guidelines.
22. In view of the complexity and novelty of the subject matter, the Authority also reserves the right to update, by its own provision, the thresholds identified in paragraph 5, after consulting interested parties and based on the experience derived from their implementation and the work of the Technical Committee referred to in Annex B to this resolution.