The hook: a fragmented rulebook meets a November proposal
On 5 October 2026 the European Parliamentary Research Service published its briefing Towards a digital fairness act. As summarised in the briefing, the Commission's fitness check found that influencers often fail to disclose commercial content. Responsibility is split among influencers, brands, agencies and platforms under the Unfair Commercial Practices Directive (UCPD), the e-Commerce Directive and the Digital Services Act (DSA). The briefing also notes that Parliament's September 2026 resolution called for an EU code of conduct for influencers, and that the Digital Fairness Act (DFA) proposal is expected in mid-November. The Parliament's own Legislative Train page lists the DFA as announced, with an indicative date of Q4 2026. We could not retrieve the 5 October briefing itself, so this analysis relies on the hook's summary of it and on the sources cited below.
The strongest case for acting
The case for regulation is not weak. In a coordinated 2024 screening, national consumer authorities reviewed 576 influencers. Of those, 97% posted commercial content, but only about 20% systematically labelled it as advertising, and 358 were flagged for follow-up. Hidden advertising is already prohibited, yet the Parliament's research service concedes that responsibilities along the value chain "are not always clear". It also notes that younger consumers and people with lower financial literacy are especially receptive to influencer marketing. A 20% compliance rate under a rule that has existed for years suggests the problem is more than ignorance of the law, and a fragmented rulebook makes it worse. France and Spain have already legislated nationally, so a creator in one member state faces different obligations than a creator in another. A harmonised EU rule is a legitimate goal.
What the evidence actually shows
The 20% figure is a damning number about practice. It is a weaker argument for new law. The screening found that 38% of influencers did not use the platforms' built-in commercial-content tags, such as Instagram's "paid partnership" label. That is a design and enforcement problem. The tools exist, the legal duty exists, and what is missing is consistent supervision. The Commission's own 2024 fitness check of consumer law, as summarised on Parliament's Legislative Train page, attributes consumer harm partly to weak enforcement, legal uncertainty and fragmentation, not only to gaps in substantive rules. Adding a new layer of obligations does little about enforcement capacity.
Parliament's position goes further than disclosure. On 17 September 2026, MEPs passed a non-binding resolution by 395 votes to 136, with 80 abstentions, according to trade-press reporting. It asks the Commission and member states to create an EU-wide code of conduct covering influencers, agencies and platforms, to define "influencer marketing" in law, and to use the coming Audiovisual Media Services Directive revision to clarify whether creators fall under media-provider advertising rules. The same text also asks for platform age verification and a "youth mode" that disables targeted advertising for minors. We could not retrieve the resolution text or a Parliament press release, so these details come from the trade press.
Where proportionality matters
Three design choices will decide whether the DFA helps or hurts.
- Define the commercial relationship, not the creator. A legal definition of "influencer" risks sweeping in hobbyists, small businesses and people who occasionally recommend a product. A definition anchored in consideration, meaning payment, free goods or an affiliate link, targets the actual harm of hidden advertising and leaves ordinary speech alone.
- Assign liability in order. Today an undisclosed post can implicate the influencer, the brand that paid for it, the agency that brokered it and the platform that hosted it. The most workable allocation puts primary responsibility on the party that commissioned and controls the commercial message, with the influencer owing a duty to label. Platforms should owe a duty to provide labelling tools and to act on notice. Imposing monitoring duties on platforms would run against the DSA's no-general-monitoring principle and would push over-removal of legitimate creator content.
- Prefer a code that is voluntary with teeth, or none at all. A code of conduct can speed up norm-setting, and Parliament is right that agencies and brands belong in it. But a code that regulators later treat as the benchmark for liability is regulation by another name, without the impact assessment that binding law requires. If the Commission endorses one, it should say plainly whether adherence creates a presumption of compliance.
The speech dimension
Creator economies are a pro-innovation success story. They give small publishers, educators and local-language voices reach that legacy media never offered. Disclosure duties are compatible with free expression because they regulate a commercial fact, not a viewpoint. Mission creep is the risk. The same resolution bundles influencer rules with age verification, algorithmic transparency and AI-companion standards. Each raises separate proportionality questions, and bundling them invites broad obligations that nobody scrutinised individually. Age verification in particular carries privacy costs that deserve their own debate. The same concern appears in the United States, where, as the Electronic Frontier Foundation notes, courts have just allowed Florida and Georgia to enforce social media age-gating laws.
What to watch in November
The test of the Commission's proposal is simple. Does it clarify liability so that a brand, an agency and a creator each know what they owe? Does it fund and coordinate enforcement through the Consumer Protection Cooperation network? And does it keep the definition tied to commercial consideration? If it does, it will close a real gap. If it instead creates a new registry of influencers, imposes platform monitoring or relies on a code with unclear legal status, it will add compliance cost for small creators while the large agencies that already comply absorb it easily. The disclosure problem was never a shortage of rules. It was a shortage of clear responsibility and consistent enforcement, and the DFA should be judged on whether it fixes those.