Influencer Marketing: the "Digital Chart" is now part of the Italian Code of Marketing Communication Self-Regulation

The "Digital Chart" was first released three years ago by the Italian Advertising Self-Regulation Authority (the so called "Istituto di Autodisciplina Pubblicitaria" - IAP), in order to meet the growing market demand to make online marketing communication distinguishable as such. One of the main aims that led to the release of the Digital Chart was to regulate marketing communications and endorsements made by influencers and celebrities on the internet and on social networks.

Although it has become over the years a point of reference especially for influencer marketing, the Digital Chart has so far remained a bundle of recommendations and best practices.

But from April 2019 the Digital Chart guidelines are converted into a proper regulation called "Digital Chart Regulation on the recognisability of commercial communication distributed through the Internet" (in short the "Digital Chart Regulation"), to which the 66th edition of the Code of Marketing Communication makes explicit reference.

Reference to the newborn Digital Chart Regulation can be found in article 7 of the Code. In the past this provision - which has always been aimed at preventing the omission of the business purposes of commercial communications – only required that commercial communication was clearly recognisable and distinguishable from other content through the adoption of appropriate measures. Today, with the latest amendments of the Code, Article 7 specifies that "with regard to certain forms of commercial communication disseminated through the Internet, the main appropriate measures are indicated in the Digital Chart Regulations".

The Digital Chart Regulation, recalling the wording of the old guidelines, lists the requirements to be met - as well as the wording and hashtags to be used - to make each of the most widespread forms of digital commercial communication (such as, for example, endorsements by influencers and celebrities, videos, native advertising, in app advertising and advergames, editorial content, etc.) distinguishable, so as to comply with the requirement of recognisability set forth by article 7 of the Code.

For example, to mention one of the most popular, as far as endorsements by influencers and celebrities are concerned the Digital Chart Regulation provides that one of the following words is inserted in the initial part of a post, in a clearly distinguishable manner:

• Pubblicità/Advertising” or “Promosso da … brand/Promoted by…brand” or “Sponsorizzato da…brand/Sponsored by…brand” or “in collaborazione con…brand/In partnership with…brand”;

and/or the first three hashtags one of the following terms

• “#Pubblicità/#Advertising”, or “#Sponsorizzato da … brand/#Sponsored by … brand”, or “#ad” unitamente a “#brand”.

It is also interesting to note that the Digital Chart Regulation expressly clarifies that a company will not be liable under Article 7 if it is able to prove that it previously informed the influencer about the existence of the aforementioned specific recognisability requirements.

The diffusion of digital commercial communications that do not comply with the Digital Chart Regulation will therefore constitute a violation of Article 7 of the Code and may be contested by competitors and ex officio by Self-Regulation Authority and, in the most serious cases, may even be subject to fines by the Italian Competition Authority.

Finally, it is also worth recalling the very first reaction to this issue by the IAP. On 13 May 2019, the President of the Review Board issued a desist order for violation of Article 7 of the Code against a famous Italian celebrity who, in March, published on her Instagram account a post aimed at promoting the products of a well-known brand, but the relevant commercial communications were not sufficiently explicit, although there was clearly a business relationship between the celebrity and the brand. The desist order refers to all those measures to be taken in connection to online endorsement listed in the "regulation issued on 29 April and expressly referred to in the code".

Are these perhaps the first steps towards a national regulation on influencer marketing?