Written evidence submitted by the Competition and Markets Authority

7 May 2021

THE POWER OF SOCIAL MEDIA INFLUENCERS
CMA SUBMISSION TO THE DCMS SELECT COMMITTEE

Introduction

1.     On 26 March 2021, the DCMS committee invited written submissions for an inquiry into the power of social media influencers, covering the following areas:

• ‘how would you define ‘influencers’ and ‘influencer culture’? Is this a new phenomenon?
• has ‘influencing’ impacted popular culture? If so, how has society and/or culture changed because of this side of social media?
• is it right that influencers are predominantly associated with advertising and consumerism, and if not, what other roles do influencers fulfil online?
• how are tech companies encouraging or disrupting the activities of influencing?
• how aware are users of the arrangements between influencers and advertisers? Should policymakers, tech companies and influencers and advertisers themselves do more to ensure these arrangements are transparent?’[1]

2.     In response to this invitation, the Competition and Markets Authority (‘CMA’) provides the following submission. The submission begins with a summary of the CMA’s position on influencer marketing, followed by an overview of the CMA’s previous work in this sector, and finally by a specific response to each point raised in the invitation.

The CMA’s position on influencer marketing

3.     The CMA is a non-ministerial government department which has statutory powers to enforce consumer protection legislation. The CMA has used these powers to initiate enforcement action in relation to illegal influencer endorsements on several occasions.  In initiating these investigations, the CMA has relied on one or more parties having breached the Consumer Protection from Unfair Trading Regulations 2008 (‘CPRs’).

4.     In summary the CMA’s position is this:

a)     reviews and endorsements by influencers can be useful for consumers when making purchasing decisions, but only where they are truthful, where negative reviews are not suppressed, and it is made clear where the reviewer / endorser has received an incentive to promote the product. Where an influencer has received any form of incentive, and they promote a product or a brand, the post must be clearly and prominently labelled as an advertisement; and

b)     it is often the case that influencers promote products in the context of a marketing campaign commissioned by a brand, which involves one or more marketing agencies, and with the marketing taking place on an online platform. Everyone in this chain must take responsibility for ensuring the resulting adverts are properly labelled as advertisements, and where they are not, all of these parties may be liable under consumer law.

Relevant work to date by the CMA and its predecessor body the OFT

5.     In July 2010, the OFT investigated the engagement by Handpicked Media (‘HM’) of influencers, who published online content promoting HM’s clients. The OFT found there were insufficient disclosures to make clear to consumers that the promotions had been paid for. As a result of the investigation, HM signed undertakings to ensure compliance with consumer law.[2]

6.     In June 2011, the OFT opened an investigation into MoreNiche Limited, which operated a network whereby its affiliates promoted clients’ products. [3] Following consultation, MoreNiche signed undertakings including that affiliates would not post promotions without a prominently displayed statement that the promotion had been paid for.

7.     As a result of the CMA’s concerns about the potential for reviews and endorsements to mislead consumers, the CMA launched a call for information on online reviews and endorsements in February 2015, to increase its understanding of the sector. In June 2015, the CMA published its findings in a call for information report.[4] Its key findings in relation to endorsements included the following:

a.     around 6% of UK consumers had made purchases after reading about items in a blog or vlog. Consumers that used blogs and vlogs before making a purchase found them valuable and tended to trust the opinions of the blogger or vlogger;

b.     there was concern that some businesses were paying for advertising or sponsored content in blogs and other online articles, without ensuring that this was obviously identifiable to consumers. These practices were found likely to breach the CPRs and the UK Advertising Codes;

c.      qualitative research suggested that consumers were likely to place less reliance on promotional material than they would on an endorsement that they might consider to be the genuine opinion of a blogger or vlogger. Unlabelled endorsements therefore had the potential to lead to consumers choosing a product that did not meet their needs as well as an alternative product would, and for some businesses to lose custom as a result.

8.     In December 2015, the CMA opened an investigation into Total SEO, a search engine optimisation and online marketing company.[5] Total SEO provided undertakings to confirm that they (i) had ceased the practice of writing fake reviews for clients; and (ii) would take steps to remove the fake reviews already posted online.

9.     In January 2016, the CMA opened an investigation of trusted trader and care home review sites and obtained commitments from five companies to enable consumers to have a more complete picture when making buying decisions on those sites.

10. In April 2016, a CMA investigation found two marketing companies, Starcom Mediavest and TAN Media, arranged for endorsements in online articles and blogs on behalf of MYJAR, a short-term loan provider, without making it clear that they were advertising. MYJAR, Starcom Mediavest and TAN Media all provided undertakings to the CMA that they would ensure all advertising in articles and blogs is clearly identified so that it is distinguishable from the opinion of a journalist or blogger.

11. In August 2016, the CMA opened an investigation into Social Chain, which had arranged for widely followed social media personalities to run promotions without readers being informed that the content was paid-for advertising.[6] Social Chain agreed to undertakings to ensure that all advertising it posts or arranges are clearly labelled.

12. In a separate investigation in August 2016, the CMA secured undertakings from Woolovers Limited, to ensure that it would publish only genuine, relevant and lawful customer reviews on its website and not suppress unfavourable reviews.[7]

13. In August 2018, the CMA launched a consumer enforcement investigation into concerns that social media influencers may not have declared when they have been paid, or rewarded, to endorse goods or services.[8] As a result of this investigation, in January 2019, sixteen influencers provided undertakings to improve disclosures in their social media posts, to make it clear when they have been paid or otherwise incentivised to endorse a product or service.[9]

14. Also in January 2019, the CMA published a guide to influencers on how they could ensure compliance with consumer law,[10] and co-published a second guide with the Advertising Standards Authority in February 2020.[11]

15. In June 2019, the CMA launched a programme of work aimed at tackling the problem of fake and misleading online reviews.[12] As the first stage of this work, and in response to the CMA’s concerns, the Facebook, eBay and Instagram platforms committed to take action and put in place robust systems to detect, remove and prevent the reappearance of online content – for example, online groups on Facebook and seller listings on eBay - that facilitated the trade of fake and misleading reviews in future. In May 2020, as a second stage of this work, the CMA opened an investigation into several major platforms that display online reviews to determine whether these platforms are taking sufficient measures to protect consumers from fake and misleading reviews on their websites.

16. The CMA has also been investigating the role that platforms play in social media endorsements.[13] As a result of this investigation, in October 2020, Facebook provided undertakings relating to its Instagram platform to tackle this issue, which are discussed below at paragraph 47.[14] These undertakings must be implemented in full by 30 June 2021. The CMA is also considering the compliance of other social media platforms.

Submissions on terms of reference

How would you define 'influencers' and ‘influencer culture'? Is this a new phenomenon?

Defining influencers

17. From its perspective as a public body with responsibility for enforcing consumer protection law, the CMA considers that influencers can often constitute ‘traders’ under the CPRs. ‘Traders’ are defined under the legislation as ‘any person who in relation to a commercial practice is acting for purposes relating to his business, and anyone acting in the name of or on behalf of a trader.’[15]

18. In particular, the CMA considers that influencers are acting as traders both when they accept instructions to endorse a product and when they are paid, incentivised or in any way rewarded to endorse or review something in their posts. Incentivisation includes not only where an influencer is paid or contracted to endorse a product, but also where they have received a free gift or loan of a product within a reasonable time before posting about a brand or specific product, and where they have any form of commercial relationship with a brand.[16] This would include where they are promoting a product on their own behalf as well as where they are promoting someone else’s product.

19. Such influencers must comply with the CPRs. The CPRs specifically prohibit:

• the use of editorial content in the media to promote goods and services without making clear in the content that the promotion has been paid for by a business;[17] and / or
• creating the false impression that content has been authored by a consumer.[18]

20. The CPRs also require traders to disclose ‘material information’, and not to mislead consumers.[19] Material information is likely to include the fact that a post is an advert. The prohibition on misleading consumers means that influencers should not make claims about a product which are not true, or which they cannot substantiate. For example, they should not claim to have used a product when they have not, or that a product has achieved a certain result which they have not experienced.

21. Failing to clearly and prominently disclose the commercial nature of an incentivised endorsement, where this is likely to affect consumers’ decisions (which we consider is likely to be the case in most circumstances), is therefore likely to breach the CPRs. The CMA has indicated what will constitute an acceptable disclosure in its 2019 and 2020 guides.[20] In essence, the CPRs require that influencers ensure incentivised endorsements are clearly and prominently labelled as adverts.

22. For completeness, the CMA also considers that platforms and brands constitute ‘traders’ under the CPRs, and therefore have obligations to take reasonable and proportionate steps to effectively tackle illegal incentivised endorsements. This is discussed further at paragraphs 40-49 (platforms) and 58-59 (brands) below.

Is this a new phenomenon?

23. Advertising via endorsements by celebrity individuals is not a new phenomenon. However, influencers on social media pose additional challenges when compared to more traditional advertising media.

(1) Advertising is integrated with an influencer’s non-commercial content

24. A key feature of influencing is that advertising is integrated with an influencer’s non-commercial editorial content, which makes it particularly difficult for consumers to distinguish between adverts and non-commercial content.

25. This is exacerbated by the fact influencers often attract ‘followers’ by referencing their own lifestyle, and by giving genuine product choices and experiences. When influencers also monetise their posts with adverts, this can be confusing for consumers, who are likely to assume the content is authentic. This effect is increased because brands choose influencers with whom the products will slot into their other authentic posts and lifestyle. In addition, influencers possess more editorial control over adverts than they would have in traditional media, meaning that adverts are more easily integrated with an influencer’s other posts, making it difficult to identify adverts where no clear disclosure is made.

26. The fact commercial content is integrated with other lifestyle ‘authentic’ posts also creates an incentive for brands and influencers not to label advertising clearly and prominently, because a feed with multiple obvious adverts may seem ‘inauthentic’ and off-putting to followers.

(2) Influencer audiences are particularly vulnerable

27. Social media is accessed by particularly young consumers, meaning that influencers often have a young audience. Research by Ofcom has found that 67% of UK children aged 13 have a social media account, rising to 83% of those aged 15.[21] In 2019 more than 3 million UK users of one major platform were aged between 13 and 17.[22] European Commission guidance on this topic has previously determined that young consumers are more vulnerable to native advertising, and that they find it particularly difficult to distinguish and identify it.[23]

28. The problem is exacerbated by the fact some users only view social media as a method for exchanging information between users. Indeed, this is primarily how social media platforms are marketed, see Instagram’s sign up page which states: ‘Sign up to see photos and videos from your friends’. [24] This means that users may not be immediately aware of the extent to which traders use social media for marketing purposes. However, the CMA did address this issue in the Facebook undertakings, which required the Instagram terms of use to be amended to inform users more clearly that ‘advertising is a central feature of its business model.’[25] The terms of use now state: ‘Connecting you with brands, products, and services in ways you care about. We use data from Instagram and other Facebook Company Products, as well as from third-party partners, to show you ads, offers, and other sponsored content that we believe will be meaningful to you.’[26]

(3) Enforcement action against influencers is challenging

29. A multitude of individuals are involved with commercial arrangements with advertisers, and the lack of clear editorial responsibility for specific adverts creates additional complications when pursuing enforcement activities against influencers than traditional advertising media. In addition, influencers may claim to be less informed regarding consumer law than traditional advertising media. For this reason, the CMA has devoted additional efforts to creating user friendly guides for influencers and engaging with the sector through compliance activities.

Has 'influencing' impacted popular culture? If so, how has society and/or culture changed because of this side of social media?

30. Influencers have affected purchasing decisions of consumers. The CMA conducted research on this topic in 2015, which, although now more than five years ago, does demonstrate useful themes in relation to the impact of endorsements on consumers:[27]

• 6% of UK consumers made purchases after reading about items in a blog or vlog. [28] Given the increasing popularity of social media since 2015,[29] and the sharp increase in marketing spend on social media since 2011,[30] it is reasonable to assume that this percentage has increased considerably since 2015;
• consumers who bought an item after seeing it in a blog or vlog tend to trust the opinions of the blogger or vlogger. 72% of those who made a purchase based on information in a blog thought it ‘very likely’ or ‘fairly likely’ that the blogger was giving their honest opinion on the product / service;[31]
• consumers were generally aware that blogs and vlogs may have some financial incentive, but most were unaware of the specifics;[32]
• consumers are likely to place less reliance on promotional material than they would on an endorsement that they might consider to be the genuine opinion of a blogger or vlogger;[33] and
• for those consumers who bought a product or service after seeing it in a blog or vlog, this information appears to play an important role in the decision. 53% found the opinion of the blogger or vlogger ‘much more important’ or a ‘little more important’ than other sources of information.[34]

31. The success of influencing as an advertising medium has led advertisers to invest more in social media advertising. In addition, platforms have capitalised on the increase by providing business services to brands, for example offering marketing plans and business accounts.

Is it right that influencers are predominantly associated with advertising and consumerism, and if not, what other roles to influencers fulfil online?

32. The CMA’s work has focussed on influencers who are predominantly associated with advertising to consumers. As stated in these submissions (and demonstrated by the statistics in paragraph 30 above), influencers often play a significant role in advertising and corresponding purchasing decisions of consumers.

33. Consumerism and advertising are often linked to influencing, since most influencers provide their content free to users and therefore have to find other ways to generate revenue from their work. Paid promotions are one of the means of revenue for such influencers.

34. Similarly, where influencers have a large readership or audience, or a strong following among a particular demographic of consumers, then businesses with goods and services to promote and media/marketing agencies that those businesses employ to act for them are likely to actively seek out influencers to promote their goods and services through them. Influencers can offer them a targeted and personalised form of advertising.

How are tech companies encouraging or disrupting the activities of influencing?

35. The CMA is of the view that platforms may not have been doing enough to effectively tackle illegal endorsements by advertisers. For this reason, the CMA commenced enforcement action and agreed undertakings with Facebook for Instagram, due to be fully implemented by June 2021.[35] More information is provided in response to the question below, but in summary the CMA considers that platforms should take appropriate proactive steps to encourage and enable compliance, monitor compliance and tackle non-compliance.

How aware are users of the arrangements between influencers and advertisers? Should policymakers, tech companies and influencers and advertisers themselves do more to ensure these arrangements are transparent?

How aware are users of the arrangements between influencers and advertisers?

36. The CMA’s research in 2015 suggested that most consumers are not aware of the specifics around financial incentives for social media endorsements.[36] Although the CMA has not carried out a formal assessment, it is possible that the CMA’s efforts since 2015 have reduced this knowledge gap, including press coverage on influencer and endorsements.[37] In any case, the law requires that consumers are made aware of any advertising arrangements on a per-advert basis.

37. Research by Prizeology in 2018 (as quoted in the ASA’s report on the labelling of influencer advertising) concludes there is a low understanding about influencer marketing:[38]

• 61% of respondents believed that influencers do not have to state when they have been paid to talk about a product (49% of those aged 18-34); and
• 49% said they were not aware of the relevant language or tags that show there is product placement (33% for 18-24s). However, when asked about the use of #ad, 59% said that this meant influencers had been paid to promote the product. This rose to 69% for the 18-24 age group.

38. In addition, research for the BBC in 2019 found that 82% of respondents thought it was not always clear when an influencer had been paid to promote an ad.  The same research found that 48% of respondents believed that most social media influencers only promote products they genuinely like.[39]

39. Finally, a YouGov survey in 2019 found 89% agreed that celebrities/influencers should make it clear when something is a paid ad, while 76% agreed with the statement that the rules around online advertising are not currently strong enough.[40]

Should policymakers, tech companies and influencers and advertisers themselves do more to ensure these arrangements are transparent?

Platforms

40. The CMA considers that social media platforms play a central role in influencing consumers’ purchasing decisions and may contravene the CPRs if they do not take an active role in effectively tackling illegal endorsements by influencers.

41. The application of the CPRs to online platforms in such cases is consistent with the stated legislative aim of the CPRs, which is to establish a ‘high level of consumer protection’.

42. The platforms are ‘traders’ under the CPRs, since they engage in business to consumer commercial practices. While users are not required to provide financial renumeration for access to these platforms, they do provide an exchange of value by granting licences to use their data, which in turn generates advertising revenues for platforms.

43. Platforms which do not take specific proactive steps to effectively prevent illegal endorsements may therefore contravene Regulation 3(3) of the CPRs, which prohibits commercial practices which contravene the requirements of professional diligence and materially distort the economic behaviour of the average consumer.

44. Users of platforms rightly expect content to be moderated to a reasonable and proportionate extent, so that the platform prevents or removes unlawful or otherwise objectionable content – for example content regarding terrorism, pornography and copyright infringements. This principle also extends to unlawful commercial content.  The standard of special skill and care reasonably expected from a diligent platform, commensurate with honest market practice or the general principle of good faith, requires platforms to take appropriate steps to moderate unlawful and misleading content to effectively mitigate the risks of consumers being misled (for example, by false or deceptive online content).

45. In addition, Regulation 6 of the CPRs prohibits misleading omissions. The CMA considers that platforms may be in breach of Regulation 6 by failing to make clear to users where they are seeing commercial content on individual posts.

46. We consider that appropriate and effective moderating of unlabelled, incentivised endorsements requires taking proactive steps to highlight disclosure requirements and facilitate compliance, as well as taking specific, reasonable and proportionate steps to monitor and remove unlawful, misleading content.  In particular, platforms should:

• provide timely, clear, unambiguous, sufficiently detailed and easy to find guidance to users about the obligations surrounding endorsements and how to label properly any incentivised endorsement they wish to promote,  so that  such users are aware of what is and isn’t permissible content on the platform;
• ensure that mechanisms are in place to facilitate compliance by users with their legal obligations relating to incentivised endorsements, and ensure that these mechanisms are widely available and brought to the attention of users;
• use appropriate and available technological means to monitor/detect posting activity in relation to unlabelled incentivised endorsements. Social media tech companies are clearly in a strong position to do this – one of the undertakings agreed by Facebook was that it would create such an algorithm. [41] Similarly, Facebook has now implemented new automated technology to proactively identify and remove fake and misleading review trading groups and profiles on Facebook.com and Instagram.com following the CMA’s latest engagement on fake reviews;[42]
• use other proactive investigative procedures/means to investigate suspicious posting activity - including in particular bringing suspected unlabelled incentivised endorsements to the attention of the brands being promoted, so that the brand can confirm whether there is a commercial arrangement in place with the influencer;
• take swift steps to remove content when becoming aware that it is an unlabelled incentivised endorsement;
• ensure unlabelled incentivised endorsements can be reported easily and effectively;
• apply appropriate sanctions to effectively dissuade and deter illegal endorsements, such as banning users. Platforms should at a minimum ensure that measures are in place to restrict the ability of users to post illegal endorsements where platforms have detected that those users have repeatedly carried out such activities before; and
• take proactive steps to ensure that its systems, policies and processes for the prevention, detection and removal of this content remain effective, for example, through regular testing, reviewing and updating. This measure was agreed by Facebook following the CMA’s latest engagement on fake and misleading reviews.[43]

47. The CMA obtained undertakings from Facebook (in relation to its Instagram platform) in October 2020. These undertakings included:

• prompting influencers to confirm before posting if they have been offered an incentive;
• implementing technology designed to help it identify posts containing adverts that have not been clearly and prominently disclosed as adverts;[44]
• reporting users posting suspected unlabelled content to the businesses whose products they are endorsing;[45]
• enabling businesses to detect posts which promote their products so that they can check lawful disclosures have been made;[46] and
• revising / making clearer its policies governing the publication of incentivised endorsements.[47] 

48. The Facebook undertakings provide a template for an important behavioural shift for other social media platforms. Similarly, as a result of the CMA’s latest action on the trading of fake and misleading online reviews, Facebook has recently implemented new automated identification and removal technology to more effectively detect and remove this content, which provides a useful precedent for working with platforms to tackle illegal endorsements.[48] The CMA is considering the compliance of other platforms.

49. The CMA has also recently established its Digital Markets Unit, which it plans will oversee a regulatory regime for online platforms with strategic market status.

Influencers

50. The CMA considers that influencers – on the basis that they are likely to be traders under the CPRs - need to take steps to comply with the law by clearly and prominently disclosing incentivised endorsements, or risk enforcement action.

(1)  What influencers need to disclose

51. Where an influencer has received ‘payment’ from a brand to endorse or review something, they need to make clear that any content they subsequently post featuring that brand or any of its products is an advert. The CMA considers ‘payment’ to include any form of reward, including money, gifts of services or products, or the loan of a product, whether an influencer originally asked for it or got sent it out of the blue (e.g. ‘freebies’). Influencers receive freebies because brands or businesses hope they might post about them in return. If an influencer has not purchased a product or service themself, but received it free, their relationship with that product is fundamentally different to where a consumer buys something. The best way of making the true position clear to consumers is for the influencer clearly and prominently to label affected posts as advertisements.

52. Where influencers reference discount codes, competitions or giveaways, or refer to their own products, they cannot assume the relationship with a brand is clear. Such posts should be clearly and prominently labelled as adverts. Even where an influencer has a past relationship with a brand and this is no longer current, consumers should know.[49]  Any relationship in the last year is likely to be relevant to followers.

53. Where influencers are promoting a product they have not used themselves, this should be made clear to consumers. Otherwise people might reasonably assume that any results that are being claimed are ones they have experienced first-hand. Influencers should not make claims about products which they cannot substantiate.

54. The CMA notes from the ASA’s recent report that influencer compliance rates are still unacceptably low.[50] It should be noted that the ASA’s research was conducted before the full implementation of the Facebook undertakings and therefore the impact of those mechanisms, in particular making the paid promotions tool simpler and universally available,[51] has not yet been measured.

(2)  How influencers should disclose

55. The law is not prescriptive about how commercial relationships are declared. However, influencers should state this information in a way which is:

• transparent, easy to understand, unambiguous, timely and prominent; and

• apparent without the need for people to click for more information, no matter what type of device they are using to view the post. This means that disclosures should be made upfront, and not hidden under text folds or click-throughs. It needs to be immediately apparent to readers that the post is an advertisement.

56. The CMA takes the view that ‘Advertisement Feature’ or ‘Advertisement Promotion’, are useful descriptions, and we have seen a range of other wording including ‘#Ad’, ‘#Advert’, and using the ‘Paid Partnership’ tool on Instagram.

57. The CMA does not think the following practices go far enough to ensure compliance:

• tagging a brand or business in either the text, picture and/or video of a post without additional disclosure that the post is an advert;

• tagging a gift from a brand in either the text, picture and/or video of a post without additional disclosure that the post is an advert;

• using discount codes in a post without additional disclosure;

• using ambiguous language without additional disclosure in a post (for example ‘thank you’; ‘made possible by’; ‘in collaboration with’; ‘thanks to…’; or ‘affiliate’);

• unclear use of hashtags, for example:

• using #sp; #spon; #client; #collab; etc.

• adding #ad directly after the name of the brand or business (for example #[BRANDNAME]ad);

• when the disclosure (for example #ad, #advert) is not prominent because it is hidden at the end of or among other text and/or hashtags;

• product placement where there is an associated (and undisclosed) payment or other incentive; and

• disclosing the commercial affiliation only on an influencer’s home or profile page.

Advertisers / brands

58. The CMA considers that brands and advertisers are (along with influencers and platforms) responsible for ensuring compliance with the CPRs. The Facebook undertakings include a requirement to enable brands to detect posts and ensure the legality of disclosures, which should facilitate compliance for brands.[52] Brands ultimately have a responsibility for ensuring their brand is not being advertised illegally.

59. Specifically, brands should:

• include a clear requirement in their contracts with influencers and any marketing intermediary that incentivised endorsements must be clearly and prominently labelled as an advert, and that influencers can substantiate any claims they make about the product;
• keep records of which influencers have received incentives (including free gifts);
• monitor posts by those influencers to check that promotions of the brand’s products are labelled as adverts and are truthful; and
• take prompt action to remove unlabelled or untruthful adverts, and take such other appropriate steps to enforce their contracts with influencers and/or marketers.

Social media agencies

60. In addition, the CMA considers that social media agencies may also breach the CPRs where they facilitate the posting of their clients’ content without ensuring appropriate disclosures by influencers are in place, with the result that the average consumer is likely to be misled into taking decisions that they would not have taken otherwise.

Policymakers

(1)  Platform liability

61. Online platforms play an increasingly central role in consumers’ lives. As a result, content posted on these platforms has greater visibility and reach than ever before, enabling bad actors to carry out harmful activities in a more efficient and impactful way, and allowing serious systemic risks to emerge (particularly on the largest online platforms). The scale and frequency of many types of harmful online content and activity mean that they are extremely challenging and resource-intensive for enforcers and other regulators to address – or even mitigate the impact of – on a case by case basis using traditional methods.

62. There is a growing consensus among regulators and policymakers in the UK and across the world, that online platforms must take greater responsibility for protecting consumers who use them by taking proactive steps to address harmful activities systemically. However, there remain challenges for enforcers to hold platforms to account.

63. One challenge is the lack of clarity as to how far platforms may be required to proactively monitor content being posted on their websites. The legal position in the UK currently still reflects the generality of the EU e-Commerce Directive, including providing for a form of defence against liability for illegal content they host when providing a ‘mere hosting’ service.[53] The Directive also contains a ‘general monitoring prohibition’, which prevents EU Member States from placing general content monitoring obligations on platforms when acting as ‘hosts’.[54]

64. It has been the CMA’s experience that platforms have often invoked both their potential role as a mere host and the general monitoring prohibition, when facing enforcement action concerning their failure to take steps to effectively tackle illegal or harmful content on their websites. By contrast, the CMA considers that requiring monitoring to ensure compliance with consumer protection law in a specific case is both permissible and appropriate (not least as a matter of professional diligence under the CPRs).[55] The lack of a clear legal position does however often lead to delays in resolving consumer enforcement cases, and increases the costs companies face when facing enforcement, and the CMA therefore considers that the law would benefit from greater clarity in this respect.

65. One possible approach could be to clarify explicitly that where online platforms are acting as ‘traders’ they are required under their duties under consumer law to take specific, reasonable and proportionate steps to effectively tackle online content and activity which could result in economic harm to consumers e.g. by proactively detecting and removing such content and preventing its reappearance. This would reflect the CMA’s approach in its recent undertakings from Facebook[56] regarding Instagram and our commitments from Facebook regarding fake and misleading review trading on its Facebook and Instagram platforms.[57]

66. In addition, the CMA notes that the proposed EU Digital Services Act Regulation (‘DSA’) (which will not be required to be implemented in the UK due to Brexit) creates specific proactive obligations for ‘very large platforms’ i.e. where active monthly users are 45 million or higher, vis a vis ‘illegal content’, which is defined very widely as any breach of EU or Member State law.[58] The proposed regulation introduces a new horizontal liability framework for all categories of content and requires, in particular, very large platforms to proactively identify, analyse and assess significant systemic risks and put in place reasonable, proportionate and effective measures to mitigate those risks. This is broadly consistent with the approach the CMA has already taken with the aforementioned platforms under consumer law (which the DSA is stated to be without prejudice to).

67. The CMA also notes the Digital Services Act is part of a wider EU legislative theme of platform regulation, including the Platform to Business Regulation, which imposes obligations on social media platforms to include certain clear information in their terms and conditions, and which continues to apply in the UK as retained EU law.[59]

(2)  Enforcement and Modernisation Directive

68. The Enforcement and Modernisation Directive (the ‘Modernisation Directive’) (which is not required to be implemented in the UK since its implementation deadline falls after the end of the Brexit transition period) also contains a number of propositions which the UK Government could consider incorporating into UK law:

a.     False reviews and endorsements are expressly prohibited. The Modernisation Directive amends the Unfair Commercial Practices Directive (which is the directive underlying the CPRs) (‘UCPD’) to expressly prohibit submitting or commissioning false reviews and endorsements, and misrepresenting consumer reviews or social endorsements.[60] Adopting this or a similar amendment to the CPRs would (among other things) help further clarify that endorsements by influencers where, for example, they have not used the product in question, are prohibited.

b.     Traders cannot state reviews are from consumers, unless they have taken steps to ensure that they originate from consumers.[61] In addition, traders will normally have to disclose how they ensure that the published reviews originate from consumers, since the Directive includes this as ‘material information’.[62] Adopting this measure in the UK would help to clarify the responsibilities that brands and platforms already have taken responsibility for ensuring product reviews are genuine and truthful.

c.      Incentivised rankings must be disclosed. The Directive introduces an explicit obligation for online search results to disclose whether specific payments have been made to achieve higher rankings in search results. In addition, disclosure obligations have been widened and the main parameters of the rankings are now ‘material information’, and must be disclosed.[63]  Such an addition to UK law could help to clarify the obligation online market places and search engines have to ensure that it is clear when information (including reviews and endorsements) presented to consumers has been incentivised.

d.     Expanding scope of consumer protection legislation to platforms. Currently, some protections under EU consumer law (and retained EU law in the UK) are limited to digital content and digital services that are supplied in exchange for a price. The Directive extends the definition of ‘price’ to include payment with personal data, therefore including digital content or services that are supplied for ‘free’’ but in exchange for which the consumer provides the trader with their personal data.[64] An important implication of this is that legislation (such as the Consumer Rights Directive) now expressly applies to platforms. The CMA is of the view mirroring these amendments in retained UK law (such as the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013) should be considered.

e.     Civil right of redress for consumers. Civil right of redress for consumers is only currently explicitly possible under the CPRs for misleading actions and aggressive practices, and not for misleading omissions or blacklisted practices (although the latter may constitute misleading actions / aggressive practices in some circumstances). In contrast, the Directive amends the UCPD to provide an overarching civil redress right.[65] The CMA is of the view a parallel overarching right to redress should be considered for the CPRs, and this would enable consumers more readily to secure appropriate redress when they have been misled.