Legal Regulation of Influencers in the Digital Environment

Advertising is a form of communication whose purpose is to promote and disseminate the marketing of a good, product or service. Likewise, its intention is to persuade the consumer to purchase or consume such good, product or service. The problem with advertising arises when it is contrary to the law.

In view of this situation, a topic that has been generating a national debate lately is the regulation of content to avoid prohibited advertising by public figures better known as “influencers”.

This situation is derived from the dissemination that took place in the past electoral political campaigns of June 6, 2021, where several influencers published individually on their Instagram accounts different videos and messages in support of the Green Ecologist Party of Mexico (PVEM). Such publications were made three days prior to the elections during the electoral ban, which prohibits political parties to publish or disseminate by any means publicity of their party.

In the same way, days before the annual “Hot Sale in Mexico”, the online consumer organization Tec-Check denounced that nine influencers and the company behind the Hot Sale made misleading advertising to generate clicks and promote the private event, which goes against the Code of Ethics for Electronic Commerce of the Federal Agency of Consumer Affairs (PROFECO). In view of this situation, several civil society organizations requested the creation of a law establishing advertising regulations for content creators, influencers, and public figures on social networks.

The so-called “Influencer Law” is an initiative that seeks to protect citizens and consumers but will also provide certainty to influencers and content creators on how to properly promote products and services on social networks and other platforms. Advertising done by public figures on the Internet in exchange for money, must be an activity that must be regulated and made transparent, as it happens in other countries, where each paid advertisement has a label for the consumer or audience, and it is possible to know that it is a paid recommendation.

In Mexico there is no law applicable to advertising in personal publications on social networks, however, there are several laws that protect consumers against misleading advertising, and various administrative authorities are empowered to apply them, such as the Federal Consumer Protection Law through the Federal Agency of Consumer Affairs (PROFECO); on the other hand, if the citizen is a user of financial services, then the Law for the Defense and Protection of Users of Financial Services through the (CONDUSEF) must be applied; or, when they are regulated goods by the General Health Law, the law and its regulations on advertising through the (COFEPRIS) will be applied and also the provisions set forth in the General Law on Electoral Crimes, when applicable.

This demonstrates the importance of Influencers being aware that their publications have legal implications, whose ignorance does not exempt them from compliance, for example, in the United States, the Federal Trade Commission (FTC), in the United Kingdom, the Advertising Standards Authority (ASA) and in Spain the General Advertising Law are the agencies responsible for regulating advertising and protecting consumers. These laws and bodies enhance influencers to indicate which of their publications are paid advertisements.

Finally, the panorama of influencers and social networks in Mexico is an issue with pending regulation, but currently, the efforts that are being made to carry out this initiative are to keep consumers informed. Agencies, brands, and influencers have the responsibility to comply with the stipulated points, these actions improve “Influencer Marketing” practices, and it is also important that they take responsibility for what they recommend and reflect on the responsibility that comes with having audiences of thousands, and in some cases millions of people who place their trust in this type of profiles.