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Influencer advertising: the legal basics
The rules are settled and routinely breached. The exposure sits with the brand as much as the creator, and the contract is where it is managed.
Key points
- Payment, gifts and free products all trigger disclosure obligations.
- The label must be visible before the content, not in a hashtag block below.
- The brand is generally liable alongside the creator.
Influencer marketing has produced a consistent body of enforcement in several jurisdictions, and the rules that emerged are straightforward.
What triggers the obligation
Any benefit received in exchange for coverage: payment, free products, discounts, travel, event access, commission, or an ongoing relationship.
The threshold is low. Receiving a product to keep is generally sufficient, whether or not payment was made and whether or not the creator was asked to post.
The test is not whether the creator was told what to say. It is whether the audience would understand that a commercial relationship exists.
Where the label goes
At the start of the content, visible without any action by the viewer.
| Placement | Assessment |
|---|---|
| First line of the caption, before the fold | acceptable |
| Overlaid on the image or video from the first second | acceptable |
| Platform's own disclosure tool | helpful, usually not sufficient alone |
| End of the caption | insufficient |
| Inside a block of hashtags | insufficient |
| Mentioned verbally at the end of a video | insufficient |
| In the profile biography only | insufficient |
The platform's built-in disclosure label is useful and has repeatedly been held not to be sufficient on its own, partly because its visibility varies by device and context.
Wording
The plain word for advertising, in the language of the audience. English abbreviations used with a non-English-speaking audience have been held insufficient repeatedly.
Video and live content
Video requires disclosure that is visible throughout, or at minimum at the start and at regular intervals, because viewers join at different points.
Live content is the hardest case. Verbal disclosure at the start, repeated periodically, plus a persistent visual element where the platform permits it.
The brand's exposure
Enforcement has proceeded against brands as well as creators. A brand that commissioned undisclosed advertising is generally liable, and pointing at the creator is not a defence.
What to put in every contract: the exact disclosure wording, its position, a requirement to use it, the right to require correction, and an indemnity.
Then check. A contractual clause that nobody verifies is a document rather than a control.
Affiliate links
Commission-bearing links are advertising and require the same disclosure. This is the most commonly breached case, because creators frequently regard it as different.
It is not different, and platforms and regulators have both been active on it.
Children and vulnerable audiences
Advertising to children through creators attracts additional restrictions in most jurisdictions, covering both the disclosure and the content. Where a creator's audience is substantially under-age, take specific advice before proceeding.
Frequently asked questions
Do free products count as payment?
Yes. Any benefit received in return for coverage triggers the disclosure obligation in most jurisdictions.
Does it apply to a creator's own opinion about a product they bought?
Generally no, provided there is no commercial relationship and no benefit received.
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