The Department for Digital, Culture, Media & Sport (“DCMS”) Committee recently published the Government’s response to its report on influencer culture. The report titled “Influencer Culture: Lights, camera, inaction?” which was published in May 2022, stressed that there were a number of regulatory gaps in relations to advertising disclosure and the protection of children. It continues to call for the urgent reform of influencer marketing regulation.

While the report recognises the positive effects and opportunities that influencer culture is having on traditional and digital media as well as advertising, the report also highlighted the failure of authorities and regulators to evolve in a way that protects both influencers and those that they influence. In its response, the Government recognised the issues raised in the report and accepted the need for action.  

We highlight some of the Government’s responses to the recommendations below:

• Harassment of influencers: The Government does not see the need to amend the Online Safety Bill to require online platforms to tailor their complaints mechanisms for different types of harm as the Government believes the Bill already addresses this.
• Influencer Code of Conduct: The Government supported the recommendation for a separate marketing code of conduct to be created for influencers and key stakeholders in the sector.
• Advertising Standards Authority (“ASA”): At the moment, there is a potential loophole where influencers that are gifted items from brands but not provided any instructions on publication do not fall within the scope of the CAP Code. The Government will ‘bear in mind’ the recommendation to remove the editorial ‘control’ requirement to determine whether content constitutes an advertisement and to provide the ASA with statutory powers to enforce the CAP Code.
• Competition Markets Authority (“CMA”): The Government acknowledged that the CMA should receive additional powers to enforce consumer protection law without judicial intervention.
• Child exploitation: The Government recognised that existing legislation did not extend to addressing the gap in UK child labour and performance regulation that is leaving child influencers without protection and is open to exploring a suitable legislative vehicle to close this gap. It was also recommended that the CAP Code includes mandatory enhanced disclosure for advertisements targeted to children.

It is crucial for businesses working with influencers to stay on top of developments in these areas and ensure they comply with existing rules. The issues identified in the report are under constant review by the CMA and ASA and this response provides a clear direction of travel for this rapidly evolving industry. 

Written by Noel Hung and Olivia Ward