EU influencer proposal could hold brands liable without contracts

By Nathan Brooks

Brands and agencies could face proposed fines of up to 6% of worldwide annual turnover in major cases investigated directly by the European Commission; its Digital Fairness Act proposal would also expose them to liability for creator disclosures even without formal contracts.

The Commission published its Digital Fairness Act proposal on 11 November, setting stricter disclosure requirements for influencer advertising across the EU. Brands would be expected to ensure creators label paid or gifted content rather than leaving compliance solely to the influencer. The proposed regulation still needs approval from the European Parliament and EU member states before it becomes law.

Commissioner Michael McGrath said the package was "the most significant reform of EU consumer protection rules in more than 20 years," Euronews reported. That claim sets the scale of the proposal, but its legal effect remains contingent on legislative approval and the final wording of the obligations.

What does a creator contract change?

The proposal would require brands and agencies to take appropriate steps to ensure creators follow disclosure requirements, whether through contracts or other measures. Its explanatory recitals state that brands and agencies "should therefore also be liable for compliance," and clarify that contract terms cannot exclude their own liability.

The operative question would be what steps the brand took to secure compliance, not merely what the contract says. Contract language could allocate duties between the parties, but the recitals preserve the brand’s own proposed liability.

Nor would a brand’s failure to approve a post necessarily resolve the case. Liability would depend on the circumstances and the steps the brand had taken to ensure compliance.

How does the payment definition affect performance deals?

Payment covers money or any other form of consideration with asset value. The definition could therefore reach:

• Creator fees, which qualify as money.
• Gifted products, which may carry asset value.
• Affiliate commissions, which the text could include as broader consideration.

The proposal does not specifically mention affiliate links or discount codes, so those identifiers are not the stated legal trigger.

For performance programs, the announcement identifies no spend, creator-count or vertical threshold. It also sets no different treatment for CPL, CPA, rev-share or hybrid structures: a creator fee fits the money limb, while affiliate commission may fit the broader asset-value limb.

When can a brand be liable without approving the content?

IAB Austria, which represents more than 200 digital businesses, said on Wednesday that influencer rules should place responsibility on whoever has editorial control, according to Trending Topics. Under the proposal, a brand that sends products to a creator could face responsibility for missing labels even if it did not approve the content before publication.

Liability would depend on the circumstances and the steps the brand had taken to ensure compliance. IAB Austria’s editorial-control position would not necessarily settle that case.

How does the proposal compare with UK rules?

The proposed regulation would not become part of UK law, but British businesses targeting EU consumers could still fall within its scope.

UK rules already go further on one point. An October influencer guide from the ASA, CAP and CMA names affiliate links and discount codes as ads that need labelling and says brands, marketers and influencers share responsibility. The ASA’s 2023 update had already required the label AD on affiliate and gifted content.

A UK agency running a creator campaign for London and Paris would therefore work to similar expectations on both sides of the Channel. For brands already checking creator content against UK advertising rules, much of the proposed approach is familiar.

Those relying on influencers to handle disclosure themselves have more work to do, because a creator contract alone would not protect a brand under the Commission proposal.

Once Parliament and member states settle the final text, brands and agencies scaling EU-facing paid, gifted and affiliate campaigns may need to verify creator disclosures themselves rather than rely on creator contracts.