Who is a “finfluencer”?

Finfluencers are influencers who promote financial, banking, payment, and/or cryptocurrency products or services on social media.

These professionals are gaining increasing attention as their presence grows on social media platforms. However, the rise of finfluencers also raises concerns, particularly for the advertising of financial/banking products, which could pose risks for consumers who may not fully grasp the products and services being promoted. Social media platforms are reacting to this new trend and trying to take adequate measures to limit the potential risks. For example, TikTok included the financial products or services or opportunities among the “Prohibited Industries” that could not be promoted on the social media.

From a legal perspective, finfluencers have been treated differently within EU borders. Notably, while in the Italian legal and regulatory landscape the category has remained in the shadows, countries like Spain and France have closely observed the phenomenon for some time. This scrutiny has led to the adoption of stricter rules that these individuals must follow. Let's examine how different legislators have approached this issue and which regulations apply.

Italian perspective

The dual nature of finfluencers means that their activities may fall under both advertising regulations and banking and financial ones. While Italy lacks specific rules for influencer marketing in the financial/banking sector, existing regulations and provisions on marketing and advertising should be observed by these individuals. This adaptation should take into account the unique nature of the products and services being promoted and their potential impact on followers.

Italy – Advertising and influencer marketing rules

Like any other influencer in Italy, finfluencers shall comply among others with:

• the Consumer Code;

• the Self-Regulatory Code and the Digital Chart by IAP (a self-regulatory body for advertising which is one of the main authorities in Italy for advertising and influencer marketing);

• Articles 4, c.1; 6, c.2 lett.a); 30; 32; 37; 38; 39; 43; 46;47 e 48 of TUSMA (the consolidated text on media and audio visual services, Legislative Decree No. 208 of 8 November 2021), where applicable pursuant to the Guidelines adopted in January by AGCOM (Authority guarantee of the communications).

The above mentioned regulations provide general principles of transparency in the communication of the advertising message and of easy identification of a message/content as advertising (including the use of the correct hashtag and wordings such as #adv or #inpartnershipwith). Nevertheless, compared to normal influencers active in other areas, the general rules of transparency and accuracy shall be observed more severely by finfluencers in the promotion of products and services, in order to enable the public, even if lacking specific training or knowledge on financial products, to better understand the risks and take informed decisions. In particular, with reference to transparency, commercial communications should provide correct, clear and comprehensive information to avoid misleading the public about the advertiser, the nature of the proposal, the quantity and characteristics of the products or services offered, the applicable conditions, and the risks involved in the transaction.

Another point to note is that TUSMA applies not only to those who promote the products or services of others, but also to those who independently do promotion and training, such as finfluencers that post training video online. Consequently, these figures, where they meet the subjective requirements provided the AGCOM Guidelines (regarding, among others, the number of followers – at least 1M in all platforms on which the influencer is active – and the type of activity carried out on social media), shall act in compliance to the relevant rules provided by TUSMA in order to avoid the severe sanctions provided by the authority.

Italy – Rules on financial/banking products advertising

In addition to the rules on advertising and influencer marketing, finfluencers, when promoting the products and services of a banking, payment or financial institution, shall keep in mind (and avoid) the risk that the promotional activity, as carried out, may fall under one of the reserved activities and end up qualifying, for example, as financial advisors, credit brokers or agents envisaged by the Legislative Decree no. 385 of 1 September 1993 (Italian Consolidated Banking Act) and the Legislative Decree no. 58 of 24 February 1998 (Consolidated Financial Act).

Moreover, banking, payment and financial institutions availing themselves of influencers to promote regulated products or services must be sure that the relevant marketing communication is compliant with the specific requirements set out by law for each product or service, in addition to the general requirement to provide correct, clear and comprehensive information. The rules to apply depend on the specific product or service.

What’s next for Italy?

The future of finfluencers in Italy seems destined to draw the attention of legislators and regulators, much like it has in other countries under review. Currently, a committee established by AGCOM with the mentioned Guidelines, is actively developing a code of conduct for influencers to align with TUSMA regulations. This committee aims to clarify how TUSMA rules will apply to influencers, particularly regarding transparency requirements. We cannot exclude going forward thatItalian regulatory supervisory authorities, such as Bank of Italy and CONSOB, may also intervene on finfluencer marketing with the aim of regulating this activity more directly.

French perspective

The French legislator has decided to adopt a specific law on the status of influencers, becoming one of the first countries in the European Union to pass a law governing the status of influencers (Law No. 2023-451 of 9 June 2023 “aiming at regulating commercial influence and combating the abuses of influencers on social networks” (“Influencer’s Law”). This law, which has already been subject to recent changes in April 2024, will probably be modified again in the coming months, and further detailed with implementing decrees to be adopted.

The scope of this law is large, as influencers targeting a French audience are concerned, even if they are not established in France.

This law is not the only source of law regulating the activities of influencers and finfluencers in France, as French and EU rules on advertising and marketing activities also continue to apply to them, including specific rules for regulated activities.

France – Rules on advertising and influencer marketing

In France, advertising is governed by a number of laws and regulations, and in particular those under the Consumer Code ; the Law of 21 June 2004 (LCEN – “Law for confidence in the digital economy”); and the above mentioned Influencer’s Law. 

The Influencer’s Law notably defines an influencer as any natural or legal person who uses his/her reputation with an audience to communicate, either directly or indirectly, by electronic means, with a view of promoting goods, services or a cause; for which he/she receives a payment, either money, free products, free services, etc.

The Influencer’s Law sets out several obligations for the influencers:

• They have to inform the public about the promotional nature of advertisements/publications, by adding the words "Advertising" or "Commercial collaboration" ; and
• They are required, where the payment they receive exceeds a certain amount which will be set by an implementing decree, to sign a written agreement with the influencer agent containing the following information: 

  • Information concerning the identity of the parties, their postal and electronic addresses and their country of residence for tax purposes;

  • The nature of the commercial collaboration;

  • With regard to the payment received by the influencer, the remuneration in cash or the methods for determining it, where applicable the value of the benefit in kind as well as the conditions and methods for allocating it;

  • The rights and obligations of the parties, particularly in terms of intellectual property rights;

  • That the contract is subject to French law, in particular the French Consumer Code, the French Intellectual Property Code and this Law, for the promotion intended to a public established on French territory.

There are current discussions between French outside and in-house lawyers regarding the provisions that should be included in such written agreements, notably regarding IP rights covering posts on social networks / pictures published by the influencers etc, and the rights of advertisers to ask for a removal of the posts (eg. in case of a “bad buzz”).

France – Rules on financial products advertising applicable to finfluencers

In addition to the generic rules governing online advertising, influencers must also comply with the provisions governing regulated products and services, in particular those set out in the French Monetary and Financial Code (Code Monétaire et Financier).

In this respect, two types of measures are provided depending on the type of financial product at stake. On the one hand, certain products are subject to an absolute ban on advertising, while others are subject to a strictly regulated practice:

• Prohibited practices – Finfluencers are strictly prohibited by law from promoting the following financial products:

• 1° Financial contracts listed in Article L. 533-12-7 of the Monetary and Financial Code  - in particular those for which the maximum risk is not known at the time of subscription, for which the risk of loss is greater than the amount of the initial financial contribution or for which the risk of loss in relation to the corresponding potential benefits is not reasonably comprehensible in view of the particular nature of the financial contract proposed.

• 2° The provision of services on digital assets, within the meaning of article L. 54-10-2 of the same code, with the exception of those for which the advertiser (digital asset service provider) is registered or approved by the Financial Markets Authority (Autorité des marchés financiers -“AMF”);

• 3° Initial coin offerings (ICO), within the meaning of Article L. 552-3 of the same Code, except where the advertiser has obtained AMF approval;

• 4° Digital assets, with the exception of those linked to services for which the advertiser is registered under the conditions provided for in article L. 54-10-3 of the same code or approved according to article L. 54-10-5 of the same code, or where the advertiser does not fall within the scope of articles L. 54-10-3 and L. 54-10-5 of the same code.

• Regulated practices – For the activities that are not prohibited, finfluencers remain subject to the provisions of Articles L.341-1 to L.341-17 of the Monetary and Financial Code on banking and financial promotion.

France – Sanctions / controls on (f)influencer activity

The Influencer Law has also introduced a common liability between the advertiser, agents (where applicable), and the influencer, which means that they are jointly and severally liable for any damage caused to third parties in the performance of the commercial influence contract between them.

The law provides various penalties for non-compliance with the influencer’s obligations, including:

• The failure to mention the words "advertising" or "commercial collaboration" constitutes a "misleading commercial practice", punishable by two years' imprisonment and a fine of 300,000 fine.
• The promotion of a prohibited product is punishable by an administrative fine of up to €100,000.

Since Influencers’ activities are now strictly regulated in France, their controls are becoming more and more frequent. As such, several administrative authorities are empowered to ensure compliance with the provisions of the Influencers Law, in particular the DGCCRF (General Directorate for Competition, Consumer Affairs and Fraud Control).

To this end, the DGCCRF regularly organizes checks on influencers' practices, and has carried out over 300 checks between 2022 and 2023, revealing that half of the influencers controlled were not compliant. As a result of these investigations, the DGCCRF issued :

• 35 warnings to influencers whose non-compliance was occasional;

• 81 compliance orders; and

• 35 criminal proceedings were initiated for the most serious breaches.

What’s next for France?

While this Influencers Law clarifies the status of (f)influencers, their obligations, prohibited practices and applicable sanctions - a number of grey areas persist:

• We are still waiting for the publication of implementing decrees which should address practical issues;

• Following the entry into force of this Law, the European Commission noted that the law contained provisions that overlapped some of the mandatory provisions set out in some European regulations, notably the Regulation (EU) 2022/2065 on the Digital Services Act (DSA), the Directive on electronic commerce No. 2000/31/EC and the Directive (EU) 2015/1535. So some provisions of the Influencer’s Law were  repealed in April 2024 (which do not affect the above mentioned rules), and other provisions are likely to be modified by the French government within 9 months from the entry into force of the law No. 2024/364 of 22 April 2024.

Some clarifications/changes are therefore expected in the coming months.

Spanish perspective

The introduction of influencers (as such) in Spanish law is relatively recent. Spanish legislation generally labels influencers as "users of special relevance" within the social media arena. Advertising and marketing activities carried out by influencers are subject to a series of obligations applicable to audiovisual media services, provided that they meet minimum requirements in terms of (essentially) revenue and audience.

The Spanish legislator has not issued regulation concerning the role of finfluencers, but – despite lacking such specific regulation – an extra layer of customer protection generally applies given the particularities of the financial products they advertise. Hence, one must consider – along with general audiovisual media services regulations – certain rules inherent to the financial services domain.

Spain – Rules on advertising and influencer marketing on video-sharing platforms

Both influencers and (f)influencers are subject to certain obligations. To name but a few, they are subject to the principles and obligations set forth in Article 94 of the Law No. 13 of 7 July2022, General Audiovisual Media ("Audiovisual Media Law"), provided that they meet the minimum requirements laid down in Royal Decree No. 444 of 30 April 2024 ("RD 444/2024"). According to the RD 444/2024, users of special relevance of video-sharing platforms are those who reach, in the previous calendar year, cumulatively: (i) a gross revenue from user activity on social media equal to or greater than EUR 300,000, (ii) an audience of 1 million or more followers on one platform or 2 million in aggregate across multiple platforms, and (iii) a number of at least 24 videos published. In other words, those influencers whose engagement and revenue figures in the previous year are below the ones set out by requirements either (i), (ii) or (iii) above fall outside the scope of the Audiovisual Media Law. It should also be highlighted that other social media that do not qualify as video-sharing platform are out of scope of these obligations.

Users who do comply with the above are considered users of special relevance (i.e. influencers), hence in light of Article 94 ex Audiovisual Media Law they must comply with certain obligations, which include:

• mandatory registration in a specific public registry (Registro Estatal de Prestadores de Servicios de Comunicación Audiovisual, de Prestadores del Servicio de Intercambio de Vídeos a través de plataforma y de Prestadores del Servicio de Agregación de Servicios de Comunicación Audiovisual);
• complying with the general principles applicable to conventional mass media (inter alia, respect for human dignity, pluralism, minors protection, etc.);
• indicating whether a publication has been paid for by a brand and “differentiating” audiovisual commercial communications (which includes product placement, sponsored content, etc.) from regular content. Sponsored content shall include the name and logo of the sponsor and shall not directly incite to the purchase of goods or services;
• age labelling their content in order to protect minors; and
• respecting general prohibitions regarding the advertisement of tobacco, medical products, alcohol, etc.

Spain – Rules on financial/banking product advertising

Despite the fact that the finfluencer role is not per se regulated in Spain, finfluencers must comply with certain rules in addition to the general advertising and marketing regulations outlined above.  Among others they should observe the provisions set forth in Law No. 6 of 17 March 2023, on the Securities Markets and Investment Services (e.g. Article 246 on advertising, or Article 199 on the design and marketing of financial products), as well as with regulation and guidance issued by the Spanish National Securities Market Commission ("CNMV").

Also, the type of financial and banking product advertised may trigger the application of sectorial regulations. For instance, it is mandatory for finfluencers who advertise crypto-assets to communicate it to the CNMV prior to the beginning of an advertisement campaign (ex CNMV Circular No. 1 of 10 January 2022) provided that they target more than 100,000 users (understood as the highest number between (a) the estimated number of users targeted by the campaign and (b) the number of followers of the account(s) involved).

From a soft law perspective, the CNMV publicly stated on 24 October 2022 that in the event that finfluencers provide investment advice they must comply with the requirements set out in (i) Regulation (EU) 596/2014, on market abuse, and in (ii) delegated Regulation (EU) 2016/958, supplementing Regulation (EU) 596/2014, in order to ensure that (in a nutshell) they:

• issue recommendations in a clear, accurate, precise and objective manner, and

• inform the investors of the interests and conflicts of interest that they may have.

Spain – Sanctions / controls on (f)influencer activity

The Audiovisual Media Law establishes a penalty regime which (i) applies -within the social media arena- based on the liability that the platform provider (i.e. the social media platform) and the influencer may hold; and (ii) differentiates between (a) very serious, (b) serious and (c) minor sanctions. Those influencers who during the (uninterrupted) period of one month fail to comply with the obligations listed in sub-section 3.1 above will be subject to a serious sanction, which could be up to EUR 750,000.

What’s next for Spain?

Given that legislation on influencers is relatively new in Spain, it’s reasonable to expect and be vigilant for new legislative pieces and regulators' guidelines being published gradually over time that have an impact on their activity.

Authored by Maria Luigia Franceschelli, Elisabetta Zeppieri, Maria Beatrice Guardì, Zigrida Alushaj, Claire Bratel, Anaïs le Coq, Juan Ramón Robles, and Carlos Carbajo Amigo.