Thanks to Anna Zironi for collaborating on this article
Following a public consultation launched on July 21, 2023, on January 16, 2024, the Italian Communications Authority (“AGCOM”) published a resolution[1] containing guidelines for influencers that specifically address when and how influencers are subject to the regulations set forth by the Audiovisual Media Services Code[2] (hereinafter the “TUSMA”).
Guidelines were needed on this topic because advertising content published by influencers, who control the creation, production, and organization of such content, increasingly is circulating on social media platforms.
The AGCOM guidelines state that influencers meeting certain requirements should be regarded as audiovisual media service providers under the TUSMA and identifies the provisions of the TUSMA with which influencers must comply. These include general principles and specific provisions, most of them regarding protection of minors, protection of fundamental rights, commercial communications, and product placement. In addition, the AGCOM has created a technical roundtable—a work group in charge of establishing further measures applicable to influencers.
Field of application
The AGCOM guidelines apply only to influencers who share audiovisual content as a professional practice and who meet the following three requirements:
- Has at least one million subscribers (known as followers) on various social media and other platforms.
- Has published at least 24 pieces of content in the previous year.
- In the last 6 months, has reached an average engagement rate of 2% or higher on at least one social media or other platform.
Influencers who are active only sporadically and do not meet all the abovementioned requirements are not subject to the guidelines.
The AGCOM will keep a list of the influencers meeting the abovementioned requirements.
Influencer duties and prohibitions
The AGCOM says influencers must comply with the following TUSMA provisions:
- Influencers must comply with the general principles on audiovisual media services (Article 4), which inter alia include protection of individual freedom of expression, protection of human dignity, non-discrimination, fair information, and countering misinformation.
- Influencers must present facts and events truthfully in such a way as to encourage the free formation of opinions (Article 6, paragraph 2, letter a).
- Influencers must abide by the rules on copyright (Article 32) and refrain from sharing content containing incitement to commit crimes or apologies for crimes (Article 30).
- Influencers must comply with regulations on the protection of minors by refraining from publishing content that is seriously harmful to the physical, psychological, or moral development of minors. They must use reporting mechanisms for videos or images that are potentially harmful. When available, they should use the features provided by video-sharing platforms to indicate the presence of content that is potentially harmful to minors.
- Influencers must present facts and events truthfully and verify that the information they publish is correct and objective, including providing sources.
In addition, influencers must comply with the rules on commercial communications, online shopping, sponsorship, and product placement set forth by the TUSMA. They also must comply with rules forbidding hidden advertising and any implementing provisions adopted with the AGCOM regulations and with the Digital Chart Regulation on the recognizability of commercial communications disseminated via Internet issued by the Italian Advertising Self-Regulatory Institute. When dealing with content that involves product placement, influencers must include proper disclosure about the promotional nature of the content in an immediately recognizable manner.
Influencers must always safeguard respect for human dignity and shall not publish content or expressions likely to spread, incite, propagandize, justify, minimize. or otherwise legitimize violence, hatred, or discrimination. They must never offend the human dignity of a group of people or a member of a group.
They must also comply with the AGCOM principles on representation of images of women.
The establishment of a technical roundtable
The AGCOM has also established a technical roundtable that will provide additional guidance on the topic. For instance, it may further define the criteria identifying influencers falling under the AGCOM guidelines and those on the AGCOM list of influencers and may draft and adopt one or more codes of conduct. Among other things, the codes will provide technical measures ensuring that influencers comply with the applicable TUSMA provisions and will cover systems for ensuring transparency and recognizing influencers. The sender or creator of a video must always be clearly identifiable.
The AGCOM invites influencer associations, representatives of video sharing platforms, social media platforms, influencer marketing agencies, and in general those who serve as intermediaries between influencers and companies to join the roundtable. The first meeting is scheduled for March 5, 2024, and participants should submit requests to join the roundtable by February 15, 2024.
[1] No. 7/24/CONS/
[2] Testo unico dei servizi media audiovisivi, Legislative Decree No. 208/2021.
