Are you an influencer? Let us show you how to work within the law

Influencer marketing has become essential in order to publicise a brand or product. Influencers, with their large communities on social networks, play a crucial role in promoting companies. However, before entering into a collaboration, it is important to know the rules governing this practice. Here is what you need to know in order to work within the law.

Advertising or not: how to know the difference?

Influencers are popular people on social networks (Facebook, Instagram, TikTok, Threads, etc.) and who, because of their profile and the number of followers they have, become desirable ambassadors to showcase the products, brands or services of certain companies.

When this is the case, these influencers publish content online (text, video, photos) in which they extol the benefits of a product they are testing or of a brand or service that they recommend. These posts have the characteristic of resembling testimonials or personal opinions aimed at convincing or influencing others. If no consideration is received by the content creator, there is no question of this being advertising. Once the influencer receives a consideration (even unsolicited) for such a post, whether it be in cash or in kind (products, benefits, etc.), the post becomes an advertisement. 

The FPS Economy explains how to determine if a post is commercial in nature: "You are advertising or conveying a commercial message when you meet the following two conditions:

1. You are orally, visually or textually showcasing a product, company, service or brand, AND
2. You are receiving a benefit from the company behind this brand, product or service.

This is also the case when you:

• share with your followers a discount code you have received from the brand in question
• offer products for the brand or organise a competition
• share an affiliate link for a brand.

The benefit you receive can take various forms:

• a free product (even unsolicited)
• a discount voucher
• a cash payment
• a product that you can borrow
• free tickets to attend a festival
• a free overnight hotel stay
• a free meal in a restaurant
• an invitation to an event
• a percentage of the product sales generated by the affiliate link you have shared 
• ...

In other words, it is not necessary to have entered into a contract, for the brand to have explicitly asked you to post a message or for it to have control over your posts.

Even when you post messages about your own brand/product or about products with which you are visibly associated (e.g. a clothing line you have designed in collaboration with a chain, products you are marketing in collaboration with a chain, etc.), you are advertising. Therefore, your commercial message must be clearly recognisable as such."

Clear and transparent advertising

A golden rule for influencers: all content of a commercial nature must be clearly identified as such. Indeed, to protect consumers, the legislation requires that all advertising be immediately recognisable. This means that the influencer must clearly and unambiguously indicate that the content is sponsored. This means that your followers must read, see or recognise at a glance that it is an advertisement.

It is still too often the case that these commercial posts do not include any specific statement. And this happens most often in limited duration posts such as Instagram "stories", which are only publicly visible for 24 hours.

In addition to the lack of a clear statement, recognising the commercial nature of a post is made even more difficult by the fact that commercial posts often randomly appear between other ordinary non-sponsored posts. Finally, the characteristic style of a testimonial or personal opinion also makes it more difficult to distinguish between commercial and non-commercial content, some of which also mention the names of companies (restaurants visited, products used, etc.) .

The obligations relating to commercial content are not new and apply to social networks but also to all media, including more traditional channels such as television and radio.

How do you make an advertisement recognisable?

The FPS Economy recommends the following:

1) You need to let people know you are advertising

a) Preferably tag your post with an explicit word that is clear to everyone, such as "advertising" or "advertisement".This tag needs to be:

• immediately visible to your followers, without them having to open the message, and this tag cannot therefore be placed after the message between different hashtags or as the last hashtag. Preferably mention the tag at the start of your post or place it directly on the photo or in the video.
• clear and cannot disappear into the background. Therefore, ensure sufficient contrast (colours and font) with your background.
• in the same language as your message. If you post messages in English, you can simply use the term "advertisement".
• Tags such as "collaboration", "sponsored", "partner", "ambassador", "thanks to", "on behalf of" and abbreviations such as "ad" or "promo" are in most cases considered too ambiguous.

The tag "sponsored" can also be used in cases where:

• you have no agreement with the company behind the brand and it has no expectations regarding the number or content of your posts
• and you have not drawn up any contract concerning communication
• and you receive no commission based on the number of clicks.

However, even if your post is sponsored, it is advisable to use the tags "advertising" and "advertisement" because they are more closely in line with the content or the commercial nature of your message and are also clearer for your target audience.

b) Target audience

Carefully consider your target audience. Certain vulnerable groups, such as young people and children, will need more clarity (see "Exercise caution when your communication is aimed at children").

c) Use the platform labels

When they are available, use the labels provided by the platforms, such as "Paid partnership" on Instagram or "Includes a commercial communication" on YouTube.

d) The brand of the company

The brand of the company you are promoting should be clearly tagged or mentioned.

2) Always give your honest opinion

As a content creator, you should always be honest. Your opinion should accurately represent the product, service or brand so as not to mislead the consumer and not create false expectations.

3) Avoid targeting minors

It is prohibited in an advertisement to encourage children to purchase the products or brands you are promoting or to make them persuade their parents or other adults to purchase these products or brands for them.

In posts aimed at children, you therefore may not write or say "buy it now", "hurry to the shop", "you will be the coolest in class", "quick, click on the discount code", etc."

"Targeted advertising aimed at minors is now prohibited for all platforms, as is advertising based on sensitive data such as political opinions, religion or sexual orientation (except with explicit consent)" (Article of July 2024)

Being an influencer requires being self-employed: status and obligations under the microscope

Two tax regimes may apply depending on whether your activity as an influencer is carried out on a regular or an occasional basis.
The tax authorities will rely on the facts to assess whether your influencer activity is regular or occasional. More specifically, where you are generally paid in cash, post content on a regular basis, obtain contracts through an intermediary, etc. In short, where your activity is structured, it will be considered a “regular activity”.

a) Regular activity

When you want to produce posts showcasing a brand in return for (the opportunity to receive) a regular consideration, you need to have self-employed status to be able to do so legally, because the activity is considered to be a professional/economic activity. 

The FPS Economy recalls that "therefore you have to:

• register your company with the Crossroads Bank for Enterprises (CBE).
• add your company details to your social media pages and your website(s). This includes the following information:
  • the company number (BCE number)
  • your company's address
  • an e-mail address

You may also meet this obligation by making reference to your website on your social networks. You have to then list your company's details on this website and ensure that they are easily, directly and permanently available to your followers. This can be done either at the bottom of the website page or in an appropriate section (e.g. "Contact")."

If your company's address is also your private address and you do not wish to publicly disclose your private address, the recommended solution is to go to a business centre accredited by the FPS Economy and to set up your company's address there. If you choose this option, you are required to actually carry out activities in the business centre. Having your post forwarded there without actually working there cannot be considered an activity.

This entails creating two establishment units in the Crossroads Bank for Enterprises (CBE) for your company :

• 1 establishment unit (EU) with your residential address (if you want to be able to work at home),
• 1 establishment unit (EU) with the address of the business centre with which you have entered into an agreement.

The income you receive as an influencer is, in principle, professional self-employed income that must be declared as such in part 2 of the tax return and on which you will have to pay tax. The FPS Finance has a page dedicated to this subject. If the income generated is more occasional and if the conditions set by the FPS Finance are met, the latter could instead be declared as "miscellaneous income" in the section of the same name in part 2 of the tax return.

Penalties for failure to comply with these rules

Unfair practices

Failure to clearly state that you are advertising can be costly. The economic inspectorate of the FPS Economy regularly carries out checks on influencers to verify whether the Code of Economic Law is being complied with or whether there are grounds for establishing a misleading commercial practice (action or omission). The most common infringements are a lack of company details (address and/or company number) and a failure to clearly identify advertising. You run the risk of a heavy fine in the event of infringement and an even higher fine in the event of a repeat offence, in addition to the removal of your posts, if this has not yet already been done.

In Brussels and Wallonia, the Jury of Ethical Advertising (Jury d'Ethique Publicitaire) is also responsible for receiving complaints. Any person whose aim is to defend the interests of consumers or the image of advertising may lodge a complaint with this body. After having heard the advertiser's point of view, the JEP makes a decision to stop or modify a campaign or issues a provisional opinion. The decisions of the JEP are non-binding but they are followed in practice.

In Flanders, numerous warnings have already been issued to influencers for breaching Article 53 of the Mediadecreet (requirement for advertising to be identifiable as such) (examples in the press), and fines are also starting to be imposed (example in the press). This does not include any tax arrears that may be claimed by the FPS Finance due to sums not declared as professional/miscellaneous income (example in the press).

Failure to obtain the appropriate status

If you fail to register as self-employed for this activity, you will be in breach of the Belgian Code of Economic Law.

The NISSE may demand social security contribution arrears from you and impose a fine, the FPS Finance may demand tax arrears from you at a potentially higher rate and impose a fine depending on the situation, and the VAT authorities may also demand from you the payment of VAT arrears and a fine.

European and Belgian regulations for commercial content

The legal framework governing influencer marketing in Europe is strict. It is based on several texts, including the Electronic Commerce Directive and the Audiovisual Media Services Directive. These rules require all influencers to clearly mention their commercial partnerships. In Belgium, this is covered by the Code of Economic Law, which stipulates that unidentified advertising is a misleading commercial practice.

Platforms such as Instagram, TikTok and Facebook must also ensure greater transparency, in particular by offering options for reporting illegal or misleading content.

Digging deeper into the details of the rules:

• The European Electronic Commerce Directive 2000/31/EC (Art. 6) and the Audiovisual Media Services Directive (EU) 2018/1808 require all influencers in Europe to mention their commercial partnership and the company for which this communication is carried out. 

This obligation to provide information and transparency is required of each EU Member State, which has had to transpose this directive in its country, meaning that the rules or their wording still vary somewhat from one country to another. 

• The Digital Services Act is directly applicable in all EU Member States and to all companies operating in them. This regulation protects the fundamental rights of consumers online by imposing various constraints on digital platforms with regard to transparency and information (moderation of content, etc.), combating illegal content (creation of trusted flaggers, etc.) and advertising (prohibition of advertising aimed at minors, etc.). 

  Online social networking platforms (Facebook, Instagram, TikTok, etc.) that host content have to be clearer and more transparent about the functioning of the algorithms that propose content. They also have to provide a button enabling users to report illegal content posted by an influencer, and respond quickly to reports. Finally, they are also required to monitor posts themselves and to remove them if necessary or even suspend accounts.

  The regulation also mentions that influencers, as content creators, bear greater responsibility than other Internet users for the content they post online. They also have to ensure that their content is appropriate, not misleading and legal.

• In Belgium too: advertising that does not clearly indicate its commercial nature constitutes a misleading commercial practice and is therefore prohibited. The Code of Economic Law states that the trader whose product or service is being promoted must ensure that the influencers who are paid to promote it on social networks clearly mention that it is an advertisement. This rule only applies to companies. If you regularly publish messages with advertising content for brands, you will be considered a company with a professional activity within the meaning of the Code of Economic Law . You will therefore have to comply with both the provisions on commercial posts and those on self-employed status.

The article that applies to our topic is in BOOK VI (Market practices and consumer protection), TITLE 4 (Prohibited practices), Chapter 1 (Unfair practices with respect to consumers), Section 2 (Misleading practices): Art. VI.99 § 1-5.

"Art.VI.99.¹ § 1. A commercial practice shall be regarded as a misleading omission if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.
  § 2. A commercial practice shall also be regarded as a misleading omission if a company hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in paragraph 1, or fails to identify the commercial intent if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise."

• In Flanders specifically, European Directive (EU) 2018/1808 was transposed in the Mediadecreet in 2021, which requires media service providers to make their commercial communications recognisable as such. Influencers who generate income from commercial communication are to be considered media service providers.

The Flemish media regulator (VRM) has even created a protocol for content creators (Content Creator Protocol or CCP). It consists of easy to understand guidelines (texts and videos) to help influencers comply with the rules.

• In Brussels and Wallonia, the Belgian Advertising Council (Conseil belge de la publicité) and the Federation of Web Professionals (Fédération des métiers du web, FeWeb) published recommendations on influencer marketing (in 2018 then updated in 2022) to help influencers comply with the legislation and better protect consumers. The Jury of Ethical Advertising (JEP) monitors compliance with these rules by providing preventive guidance and taking non-binding decisions following complaints.

Sources and useful sites

• FPS Economy: https://economie.fgov.be/fr/themes/ventes/publicite/vous-etes-createur-de-contenu (April 2024)
• FPS Economy Contact Centre for your questions: info.eco@economie.fgov.be or 0800 120 33.
• Report an infringement to the FPS Economy: https://economie.fgov.be/en/where-and-how-report-problem 
• FPS Finance: https://finances.belgium.be/fr/particuliers/declaration_impot/taux-impo…).
• Best practices from the European Commission (ENG) : https://commission.europa.eu/live-work-travel-eu/consumer-rights-and-complaints/influencer-legal-hub_en#:~:text=The%20Influencer%20Legal%20Hub%20is,consumer%20authorities%20and%20further%20resources 
• ECC Belgium: https://www.cecbelgique.be/infos/2024/safer-internet-day-2024 (February 2024)
• ECC France : https://www.europe-consommateurs.eu/en/shopping-internet/influencers.html#:~:text=Belgique,'applique%20qu'aux%20entreprises. (March 2024)
• Lexing Avocats: https://lexing.be/influenceurs-quelles-regles-respecter/
• Article for companies wanting to use an influencer: https://info.hub.brussels/en/guide/marketing-sales-e-commerce/influence…