The new AGCOM public consultation, open until January 25, 2025, aims to review the guidelines for influencer marketing. Focus on transparency, applicability of TUSMA, and integration with the IAP Digital Chart for more effective regulation.

Edited by Ilaria Gargiulo, Partner at AMTF Avvocati

On December 11, Agcom published on its website the launch of a new public consultation through which the Authority intends to gather information and comments on the amendment of the guidelines on influencer marketing referred to in Resolution No. 7/24/CONS and the revision of the related code of conduct.

The deadline is set for January 25, 2025, and the main stakeholders in the sector are taking steps to put forward proposals for corrections and additions.

AGCOM consultation: good news for the creator economy?
The public consultation is a unique opportunity to make a significant contribution to the regulatory debate that will have a profound impact on the influencer marketing sector and will require it to comply not only with all existing advertising regulations (e.g., the Consumer Code), but also with TUSMA, the Consolidated Law on Audiovisual Media Services, i.e., the set of rules that currently govern audiovisual media activities in Italy.

The application of the regulatory framework to influencers means that all those who fall within the definition and who reach certain thresholds of followers and/or visibility are and will be subject to the obligations imposed on media operators by TUSMA. For example, in terms of advertising transparency and compliance with rules relating to sponsorship and product placement, as well as general principles for consumer protection, with particular reference to minors.

From the definition of influencer to the "dimensional" criteria for the application of TUSMA
The definition of influencer provided by the guidelines themselves includes cumulative requirements:

the nature of economic activity within the meaning of Articles 56 and 57 TFEU of the service offered;
the main purpose of the economic activity is to provide content, created or selected by the influencer, which informs, entertains, or educates and which is likely to generate income directly through commercial agreements with producers of goods and services or indirectly through monetization agreements applied by the platform or social media used;
the service is accessible to the general public, reaches a significant number of users in Italy, has a significant impact on a significant portion of the public, and the content is disseminated through a video sharing or social media platform service;
the service allows the user to access content on demand;
the service is characterized by a stable and effective link with the Italian economy; the content is offered in Italian or is explicitly aimed at users in Italy.
which is linked to a classification of the activity as "analogous or in any case comparable to that of audiovisual media service providers" and, as a result, editorial responsibility for the content is envisaged, which includes effective control over the creation, selection, or organization of the content itself.

The two categories of influencers according to the guidelines
Subsequently, the guidelines distinguish influencers into two groups, depending on whether they meet certain cumulative criteria relating to the size of the activity carried out.

The first category includes those who engage in commercial communications on the basis of agreements of any kind, in exchange for money or the supply of goods or services, which:

exceed the threshold of one million followers (resulting from the sum of subscribers on the social networks on which they operate);
have published at least 24 pieces of content in the previous year with the characteristics defined in the Guidelines;
have exceeded an average engagement rate of 2% in the last 6 months;
If the criteria are not met, then it is assumed that the subjects operate in a less continuous and structured manner, so only Articles 41 and 42 of TUSMA apply to the content created.

The path of public consultation
Public consultation is a tool that allows regulatory bodies to actively involve stakeholders in defining or revising regulations. Through this mechanism, industry operators, trade associations, professionals, and even citizens can submit proposals, observations, and comments on specific regulatory issues.

In this case, AGCOM has set a period of 45 days, starting from December 11, 2024, during which interested parties can send written contributions via certified email. No later than 10 days after the end of this period, it will also be possible to request a hearing to discuss one's position in detail in a direct meeting with the Authority.

The objectives of the AGCOM consultation
The public consultation process focuses in particular on the following aspects:

Modification of thresholds for the applicability of guidelines: currently, not all influencers fall under the provisions of the guidelines and the Consolidated Law on Audiovisual Media Services (TUSMA), but only those who have reached a cumulative total of 1 million followers on the platforms on which they operate, have published 24 pieces of content, and have an average engagement rate of 2% over the last six months. AGCOM intends to redefine these thresholds to ensure more inclusive regulation that is better suited to the dynamics of the sector, lowering the follower threshold on the one hand, adding a reference to views to also include creators linked to platforms such as YouTube or TikTok where the 'followers' element is not the most relevant, and eliminating the engagement rate requirement (given the difficulty of calculating it uniformly for all platforms and the difficulty of finding the information necessary for such a calculation).
Implementation of the Digital Chart of the Institute of Advertising Self-Regulation (IAP): this document, which already represents an important reference for making digital commercial communication transparent and recognizable, will be integrated into the code of conduct with a view to co-regulation between AGCOM and IAP in order to have a single point of reference for operators who are and will be further required to comply with the principle that advertising must always be recognizable as such.
Rules on self-promotion: the validation of specific rules to manage cases in which the goods or services promoted are directly attributable to the influencer's property, as envisaged by the AGCOM Technical Committee, which drafted the first draft of the Code of Conduct subject to consultation. This is a particularly sensitive issue, as it involves the need to balance different interests, both those of creators who must be able to promote their own products and services or companies that are legal, but also those of consumers who must be able to understand the advertising purpose of the content without necessarily having to know all the companies of which their creator of reference is a member, partner, testimonial, etc.
Amendments and additions to the Code of Conduct: operators may propose additions or amendments to further improve the code of conduct, which will be the main operational tool for the application of the guidelines and which is the result of more than seven months of work by the approximately 70 operators participating in the AGCOM technical committee.

The role of the AGCOM Technical Committee
The public consultation is part of a process initiated by AGCOM with the creation of a technical committee, a working group composed of experts and representatives from the sector, including associations (e.g., Assoinfluencer, IAB Italia, OBE), agencies, creators, and companies (including social media platforms). This committee contributed to the drafting of the code of conduct under consultation and will continue to play a crucial role, including in relation to the training and information activities planned for 2025.

Once completed, the code of conduct will become the main tool for correctly interpreting and applying the new regulatory provisions and, therefore, how the TUSMA articles referred to in the guidelines will apply to influencers.

A crucial moment for the evolution of influencer marketing
This is a crucial moment for the evolution of the influencer marketing sector. With the introduction of more precise rules and clear operational tools, AGCOM aims to:

ensure greater transparency in commercial communications;
prevent unfair practices, protecting consumers;
create a fair regulatory framework that allows all operators, large and small, to compete on a level playing field.
At the same time, however, the participation of those who will then have to operate within this regulatory framework allows those directly affected by the rules to engage with the Authority and lend their support in the development of appropriate rules that take into account the specific characteristics of the sector and the inevitable evolution of technologies.

The public consultation launched by AGCOM therefore marks an important step towards a more mature and structured regulation of influencer marketing in Italy, in line with what is happening at European level and which completes a framework of rules and general principles – also applicable to these activities – already in force. If it is true that the splinternet is a phenomenon to be taken into account in research on the regulation of activities carried out in the digital world, such as content creation and influencer marketing, listening to the voices of those who live and work within the sector can allow us to take into account the peculiarities of the context and, above all, enable mandatory regulations or codes of conduct and other soft law instruments to maintain their focus and balance towards job creation.

The point of view and expectations of industry operators is made quite clear by the words of Ilaria Barbotti, PR Manager at Assoinfluencer, who states, "This further step in the complex process outlined by the code of conduct signals the authorities' increased focus on the market and all operators in the Creator Economy. Therefore, everyone working in this field, including PR, brands, and agencies, is certainly happy to be able to bring their needs to the table, implementing and improving on the great work done so far."

Assoinfluencer actively participated in the work of the Technical Committee and fought for certain strategic aspects for the category. in all three subgroups convened by AGCOM, and several of the proposed aspects were accepted, although it currently believes that others – mainly in the Code of Conduct – should be reviewed and re-examined. For this reason, it reserves the right to evaluate, where of interest to its members, participation in this consultation as well, while inviting all operators to consider this opportunity.

Source: Digital Agenda