In recent years, the production of content for social networks has increased considerably, turning the influencer advertising market into an economic catapult. In this way, the role of this figure is becoming increasingly important in the sale of products, and most of them can be considered professional salespeople.
In July 2023, the Ministry of Economy and Digital Transformation of the Spanish Government gave the green light to a new regulation through a Draft Royal Decree, which will serve as the basis for regulating influencers. This set of rules clearly defines the requirements to fall within the scope of this regulation, as well as detailing the responsibilities related to advertising, limitations regarding the types of products that can be promoted and the penalties applicable in case of infringements. However, there are still many aspects that need to be regulated, such as the lack of transparency of the promotional content of their messages.
In this regard, on 22 February 2024, the UK Intellectual Property Office (UKIPO) presented a report entitled “The Impact of Complicit Social Media Influencers on Male Consumption of Counterfeit Goods in the UK”. This study reveals that a significant 35% of men in the UK, motivated in part by social media influencers, deliberately purchase counterfeit goods.
Among these, 24% are influenced by influencers, with sporting goods, clothing and accessories topping the list of the most commonly purchased counterfeit goods. The research revealed confusion among consumers as to what constitutes “counterfeit”, affecting their purchasing decisions. This uncertainty is linked to the way in which some social media influencers present counterfeit products, using terms such as “replica” or “duplicate” rather than explicitly recognising them as counterfeits. In the same vein, the European Commission conducted a similar investigation, in which out of 576 influencers, 358 profiles were identified that could be subject to investigation by the competent national authorities. One of the relevant findings is that more than three quarters of these profiles carry out a commercial activity, but only 36% are registered as traders at national level.
If we combine the results of the above studies, a first conclusion is that the role of social media influencers has become increasingly important in the sale of counterfeit goods and that most social media influencers can now be considered as fully-fledged professional sellers and therefore responsible for counterfeiting.
In this context, we see that, when carrying out any marketing campaign, it is essential to establish a clear and regulated relationship between the brand and the influencer, being fundamental aspects related to the provision of a service, disclosure and transparency, copyright and other intellectual and industrial property rights, compliance with standards and codes of conduct, as well as, of course, personal data.
In any case, it is imperative to establish a regulated and transparent relationship between brands and influencers through clear contracts, which also cover duration, expectations, deliverables, compensation and payment terms. These agreements should ensure clarity about sponsored content, comply with industry-specific regulations, protect data and copyright, and adhere to the policies of social media platforms. These measures are essential to reduce the promotion of counterfeit products and promote legal compliance in any marketing campaign with these new influencers.
For those seeking guidance and more information on how to establish these relationships effectively and legally, our team is available to provide you with the advice you need to ensure that your campaigns are more secure and legally compliant.
