‘#paidpartnership Means More than Money : Influencer Disclosure Obligations in the Aftermath of Peek & Cloppenburg

The interest of European and national policymakers, as well as consumer and market authorities in influencer marketing and its impact on consumer protection has recently esca- lated.1 In a nutshell, influencer marketing is a form of advertising which implies the provision of advertising ser- vices against a direct or indirect financial benefit. In turn, an influencer is a social media content creator ‘with com- mercial intent, who builds trust and authenticity-based rela- tionships with their audience (mainly on social media plat- forms), and engages online with commercial actors through different business models for monetisation purposes’.2 Whilst the Court of Justice of the EU (CJEU) has not yet elaborated directly on such practices, its judgment in the Peek & Cloppenburg case3 prompted our inquiry into the possibility of applying Point 11 of Annex I of the Unfair Commercial Practices Directive (UCPD)4 to influencer mar- keting.5 This UCPD provision blacklists as a misleading commercial practice ‘using editorial content in the media to promote a product where a trader has paid for the promo- tion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial)’. In this contribution we will briefly summarise the main findings of the judgment, before sharing our thoughts on two contentious concepts of this provision, at least in light of influencer marketing: ‘payment’ (part 2) and ‘editorial content’ (part 3)