Influencers' Regulation in Argentina: When No Law Is Better Than a Bad Law

In a recent GALA webinar, we discussed the regulation of influencers in the region, including Argentina. On that occasion, only a few weeks ago, I mentioned that Argentina does not have specific legislation in this regard. I have some news to share now: we might have some new legislation on the horizon.

Argentine senator, Cristina del Carmen Lopez Valverde, prepared a draft bill – Draft Bill No. 1358/20 "Legal Regime for Influencers”, which was submitted for preliminary approval of the Senate on June 30, 2020.

The proposal, which consists of only 15 Sections, defines “Influencer” as “any person with an important amount of followers that has a verified account, and who takes advantage of their exposure, image and persuasion ability to promote a product or service, with the purpose of affecting the purchasing decision of their followers, resulting in an economic benefit for themselves.” (section 4).

Among the diverse developments included in the draft, we highlight the following:

• Any individual or legal entity acting in social media as an influencer -as defined by Section 4-, residing in or with legal address for at least two years in Argentina, will be within the scope of the Bill. Also, those influencers performing digital advertising through social media from abroad might be included within the scope of this law, when their services are offered through a local affiliate (the wording of the Bill is not clear in this paragraph).
• Section 4 of the Bill includes definitions for “influencer”, “digital advertising”, “digital advertising services” and “advertiser or beneficiary”.
• Communication practices is defined by Section 5 as any activity performed by an influencer such as unboxing, contest & sweepstakes, pictures, videos or any ad or promotion made or to be made through social media, provided that there is a material connection (monetary compensation) between the influencer and the advertiser.
• It also sets the requirements that influencers must meet when performing digital advertising, namely: a) If the influencer gets any compensation for their post, that material connection with the advertiser must be clearly and conspicuously disclosed by using the tag #PublicidadPaga (#PaidAd); b) Clearly disclose who the advertiser is and c) Clearly disclose when the content of any digital ad is not adequate for children and adolescents.
• Registration with the local tax authority (AFIP) will be mandatory if influencers receive any payment from the advertiser.
• The last sections of the Bill include prohibitions, restrictions and sanctions. Regarding sanctions, they include warnings, withdrawal of the content, corrective orders, and fines.

To sum up, if this bill is passed, the influencers’ activity will be regulated by law and disclosure won´t be optional anymore, it will be the rule.

I celebrate this initiative which aims to regulate the activity of influencers in order to guarantee transparency, avoid unfair or deceptive acts or practices and protect consumers’ rights. However, in my opinion, it would be more effective to rely on the general principles arising from our legal framework but at the same time provide detailed guidance about how to market through endorsers and influencers within the law to businesses and others. An Influencer Enforcement Guidelines is the best call, as long as local authorities assume the control and enforcement of such principles with regard to influencers’ content on social media platforms. Why? Because it's easier to update the guidelines to reflect the ever-changing social media scenario than to amend the law.   

If that is not an option for lawmakers, then it would be convenient to have a wide-ranging debate in which all the representative voices are heard -consumers, advertisers, CONARP, advertising lawyers-, so that the Argentine Congress may enact a bill reflecting the dynamic and changing context of the influencers’ activity properly.