Digital Services Act (DSA) for Influencers & Agencies | IT-Medienrecht

Learn how the Digital Services Act (DSA) impacts influencers, creators & agencies. Get crucial info on compliance, liability & transparency for your…

The Digital Services Act (DSA) is profoundly reshaping the digital landscape, especially for creators, influencers, and agencies. This new EU regulation imposes stringent transparency requirements on major online platforms and significantly impacts influencer marketing strategies. Understanding and implementing these changes is crucial for legal compliance and sustainable success in the digital economy.

Key Takeaways from the Digital Services Act (DSA)

Transparency Obligations for VLOPs: What do TikTok & Co. have to Disclose?

With the Digital Services Act (DSA), the EU has initiated a new era in platform regulation. Very Large Online Platforms (VLOPs), defined as those with over 45 million users, are now subject to rigorous transparency and disclosure obligations. The core idea is to make the "black box" of large social media platforms more transparent for users, authorities, and business partners.

Specifically, the DSA requirements for VLOPs encompass several key areas:

Advertising Transparency

Platforms must indicate for each advertisement that it is, indeed, an advertisement. They must also disclose on whose behalf it was placed and the primary criteria used for its display. Furthermore, certain sensitive data, such as religion, sexual orientation, or political views, may no longer be used for personalized ads. Advertising targeting children is explicitly prohibited.

A publicly accessible advertising archive is also mandated for all ads placed on the platform. This archive must provide comprehensive information on the ad's content, its target group targeting, and the advertiser, and it must be searchable. Currently, reality lags behind this requirement. The EU Commission recently criticized TikTok's existing ad archive as inadequate, lacking essential information and a comprehensive search function. X/Twitter also faced issues with its advertising repository, which is difficult to access, constituting a DSA violation according to the EU.

Algorithm and Recommendation Systems

Major platforms are now required to disclose how their recommendation algorithms work. Users have a right to understand the main parameters influencing content sorting, prioritization, or filtering. The DSA also stipulates that VLOPs must offer at least one alternative to the personalized feed. This means platforms like Instagram & Co. need to provide a chronological feed (or similar) that is not based on profiling.

This measure aims to give users more control, allowing them to reduce their dependence on the algorithms' "secret recipes." For influencers, this could mean that viral reach becomes more challenging to predict if more users switch to unfiltered feeds. Conversely, platforms also have to disclose the main factors of their algorithm. This offers a potential glimpse behind the curtain for creators, helping them adapt their content strategies, although specific "secret sauce" details will likely remain trade secrets.

Content Moderation & Reporting Obligations

Mandatory transparency ensures that platforms can no longer conduct their content moderation in secret. Since February 2024, all major services must submit regular reports detailing the scope and methods of their moderation. These reports must include figures on reported posts, removed content, moderation teams deployed, and automated filtering systems. VLOPs are even required to publish these reports every six months.

For example, they must disclose the size of their content monitoring team, their qualifications, and the languages covered. This requirement already has tangible consequences. When X stated in its first DSA transparency report that it had reduced the number of content moderators by almost 20% (and covered only 7 instead of 11 EU languages), the EU immediately demanded explanations. This demonstrates that platforms will be judged on their Trust & Safety resources, and staff cuts in moderation can become a compliance issue.

DSA Transparency Database

If a platform removes content due to legal violations, it must now record this in a database managed by the EU, along with the reasons according to DSA criteria. This creates publicly accessible "removal diaries." While this may initially sound abstract to creators, it contributes to a level playing field. Arbitrary or non-transparent deletion actions by large platforms should attract attention.

In case of doubt, influencers whose posts have been deleted can better understand the justification. Additionally, the DSA mandates that users must be clearly informed why their post was removed or their account blocked and how they can lodge a complaint. Influencers, especially those whose business relies on social media visibility, understand the frustration of a deleted post or shadow ban without explanation. The DSA now establishes rights to transparency and appeal in such situations.

In summary, the DSA compels major platforms to be significantly more open. For digital entrepreneurs, whether brand or creator, this means better insight into the rules of the game but also new complexities. Those who leverage the new transparency tools, such as evaluating advertising libraries and understanding algorithm information, can gain strategic advantages. It is clear that the era of relying on opaque mechanisms, or exploiting their gray areas, is ending. EU platform regulation is serious about accountability.

Effects on Influencer Marketing: Advertising Labeling, Reach, and Content Moderation

What do these new obligations concretely mean for influencer marketing and the daily work of creators, influencer agencies, and marketing departments? They present both opportunities and challenges.

1. Advertising Labeling and Transparency

Influencer marketing law already requires that advertising be labeled as such. This is not exclusively a DSA requirement but has long been established in the German Unfair Competition Act (UWG) and EU consumer protection law. What is new, however, is the context of strict enforcement. The DSA has enshrined advertising transparency as a principle, which platforms will now (have to) demand from their users.

In practice, it is expected that social media platforms will increasingly use tools and notices to urge influencers to provide correct labeling. Hidden advertising, whether in the form of a seemingly spontaneous but sponsored post or disguised affiliate links, will be more consistently classified as illegal content and can be removed by platforms. The EU Commission classifies influencers who post on behalf of a business as "traders" and demands full transparency of commercial communication. A violation, such as a lack of labeling, is considered a misleading business practice and can result in official penalties.

The statistics are telling: an EU-wide review, known as a sweep, conducted at the end of 2023, found that approximately 75% of the influencer posts reviewed did not comply with the prescribed advertising labels. This high rate triggered alarm bells, sending a clear message that this issue needs to be addressed. Therefore, influencers and their management teams should now thoroughly examine every post for any advertising purpose and mark it crystal clear (see also our compliance tips below).

2. Algorithmic Reach and Content Distribution

The perennial question, "How do I crack the algorithm?" is on the mind of every social media participant. The DSA could change the rules of the game. Firstly, as mentioned, through the introduction of non-personalized feeds. If a significant number of users on platforms like TikTok increasingly opt for the "Follow me" feed instead of "For you," the viral power of TikTok's recommendation algorithm could be somewhat attenuated. This might lead to reach being distributed more evenly based on follower numbers rather than mysterious preferences. However, it remains to be seen whether users will widely adopt this option, as many appreciate algorithmic curation.

Secondly, the DSA compels platforms to analyze risks. They must identify and mitigate risks to society and users, such as disinformation, incitement, or fraudulent advertising. In practice, this could mean that certain content is actively downgraded by the algorithm. Examples include extremely politically charged material or trends systematically identified as harmful. Influencers operating in gray areas, like those involved in fake news or controversial content, should anticipate greater scrutiny. Their reach could be restricted by platform measures if their content is classified as a systemic risk.

Conversely, legal content that might have been mass-reported by trolls in the past now has a better chance of not being unjustifiably removed due to new review and objection rights. For serious creators, the DSA can therefore also offer protection, leading to less of a chilling effect from arbitrary deletions.

3. Content Moderation and Freedom of Expression

Many influencers are familiar with the dilemma: you post something entirely legal, but the platform removes it or applies an age restriction, often automatically or at the behest of detractors. This is where the DSA brings genuine improvements. Platforms must have clear rules and apply them consistently; otherwise, they risk penalties.

Crucially, there is a right to justification and objection. If a post is deleted, the platform must state which rule, and if applicable, which law, made it inadmissible. The creator can then lodge a complaint, initially internally, then with out-of-court bodies, or even with the competent authority if the moderation appears arbitrary. These formal rights significantly strengthen the position of creators.

While this doesn't guarantee every banned account will be quickly reinstated, it does pressure platforms to examine their moderation decisions more carefully. A paradigm shift is emerging here: where individuals once were at the mercy of content managers, the DSA now establishes something akin to basic procedural rights on social media. For influencers whose income depends on visibility, this can be invaluable. However, obligations are also increasing. Those who repeatedly post illegal content, for instance, must expect tougher sanctions, including account suspension. Platforms are now required to report and consistently crack down on such notorious violations across the EU.

The bottom line is that the DSA professionalizes the influencer marketing environment. Uncontrolled growth, whether in the form of undisclosed ads or "Wild West" content, is being contained. This fosters fairer competition for serious creators and brands. Transparency and compliance pay off in the long term, while deceptive practices carry higher risks. Of course, it remains to be seen how strictly platforms will apply these rules to individual posts in practice, as the balance between the free play of social media and regulation is an ongoing discussion. However, one thing is clear: major trends like authenticity, honest labeling, and high-quality content tend to be reinforced by the DSA. Marketing managers would be wise to align their strategies with these new guidelines now.

EU Gets Serious: First DSA Implementations Using the Example of X/Twitter

Regulations are only as effective as their enforcement. The EU wasted no time: shortly after the DSA obligations came into force, the most prominent players were scrutinized. Foremost among them was X (formerly Twitter), where Elon Musk is known to have radically overhauled personnel and guidelines. The EU Commission initiated proceedings against X in December 2023, the first of its kind under the DSA. The allegations read like a textbook of the new duties.

Inadequate Risk Management & Moderation

“Dark Patterns” and Misleading Users

Advertising Transparency and Data Access for Research

What were the consequences? X received an official "Statement of Objections" (preliminary findings of violations) in July 2024, to which the company was allowed to comment. If the Commission maintains its assessment, X could face severe penalties, potentially up to 6% of its annual global turnover. In Musk's case, this could theoretically amount to billions. Additionally, X could be ordered to implement remedial actions and even face daily fines if it continues to fail compliance.

Simultaneously, investigations are underway against other major players, including TikTok (regarding its advertising archive), AliExpress, and Meta/Facebook. The EU's message is unmistakable: it intends to set an example that the DSA is not a toothless tiger. Brussels is asserting its self-confidence, especially against US tech giants, true to the motto: "No one is above the law, no matter how big."

For influencers, agencies, and companies utilizing social media, these enforcement actions have an indirect effect: they signal that the days of laissez-faire are over. Platforms will be compelled to take DSA requirements seriously and adapt their behavior. For instance, we could soon see an improved advertising transparency center on X, beneficial for all those running campaigns there. Or TikTok will finally implement a fully functional ad archive with a search function. Moreover, no platform will be able to afford to grant known influencers loopholes in labeling, as regulatory attention is heightened. Overall, strict enforcement ensures greater legal certainty: if everyone adheres to the same rules, honest players gain an advantage. However, this also increases the compliance pressure on everyone involved in the influencer marketing ecosystem.

Liability Risks for Agencies and Management – What to Look Out For?

For a long time, brands and their advertising agencies could remain passive in influencer marketing, adhering to the motto: "The influencer is liable for legal violations; we merely commissioned them." This attitude now carries a high risk under the new regime. Agency liability in the social media sector is becoming a more tangible reality. Why?

Firstly, authorities and courts in Europe have clarified that all parties involved are responsible for surreptitious advertising. The EU Commission itself emphasizes that not only influencers ("traders") but also the advertisers and intermediaries behind them are bound by transparency obligations. In other words, if a campaign misleads consumers, the brand and potentially the agency can be prosecuted. In Italy, for example, the competition authority regularly sends warning letters to influencers and their agencies to underscore the labeling obligation.

As previously mentioned, a company in Poland faced penalties for allowing influencers to use unclear hashtags. Such cases raise awareness: agencies cannot claim to have only "mediated." Anyone managing a campaign is at least jointly liable, for example, as a "joint tortfeasor" in cases of anti-competitive behavior.

Secondly, the new DSA rules expand the scope of potential problem areas. Consider this example: an influencer agency manages 50 creators and perhaps uses its own tools or an app to execute campaigns. However, as soon as the agency undertakes platform functions, such as organizing third-party content, DSA obligations as a hosting service could theoretically become relevant. While traditional influencer agencies are generally not online platforms in the legal sense, they must be extremely careful not to be deemed such a service, for example, if user-generated content is collected on agency websites. Furthermore, if agencies are involved in community management, such as moderating comments on behalf of clients, they should be familiar with the DSA requirements for moderation. If, for instance, they delete user comments for a client without reason or explanation, this could, frankly, lead to conflicts with the new transparency standards. In this context, the liability of platform operators for user comments also becomes highly relevant.

Thirdly: contractual liability. Large brands, sensitized by the regulation, will increasingly insist on compliance clauses in contracts with agencies and influencers. Any agency that assures a client that all campaigns are DSA-compliant is obligating itself. Violations not only lead to fines from authorities but also to claims for damages or contractual penalties from clients who have protected themselves through such agreements. For example, if a fashion manufacturer has an influencer campaign coordinated by an agency, and it later emerges that some posts were not labeled as advertising, leading to a fine for the manufacturer from the consumer protection authority. The manufacturer will then seek recourse from the agency if the contract contained corresponding assurances. It is therefore crucial to have an agency contract drawn up that clearly defines these responsibilities.

Conclusion for agencies/management: They must evolve from mere intermediaries to compliance managers. The due diligence obligations in influencer marketing are increasing. This entails training influencers on labeling, implementing internal checklists before post publication, establishing contractual safeguards (ensuring influencers guarantee they will not use unfair methods), monitoring published content, and rapidly correcting violations. In essence, agencies are not automatically liable for every misstep by their talents. However, if they systematically overlook or even instigate legal breaches, they are more likely to be held liable in the future than in the past. Risk and reputation management should be adjusted accordingly.

Compliance Measures: How Creators and Agencies are Meeting DSA Requirements

Given the new legal landscape, creators, influencers, and their agencies/managers face a crucial question: What steps are necessary to ensure compliance? Here are some practical recommendations:

Always Clearly Label Advertising

This point cannot be stressed enough. Any form of cooperation, product placement, or payment, including free samples, must be identifiable as advertising. It is best to clearly state "advertising" or "advertisement" at the beginning of the post or video. Hashtags like #ad, #advertisement, or in German #Werbung, #Anzeige are helpful, but only as a supplement, not hidden among many other hashtags. The rule of thumb: an average follower must understand at first glance that the content is advertising. Unclear labels such as "#sponsoredby" or flowery phrases like "Thanks to brand X for the great product" are insufficient.

Use Platform Tools

Most social media platforms now offer their own labeling features, such as "Paid partnership with" tags on Instagram or the option on YouTube to display a "contains paid advertising" notice. These tools should absolutely be used. They not only create transparency but often also signal to the platform's backend that the post is advertising. This can be crucial for the post to be correctly categorized in the platform's advertising archive, addressing the influencer transparency obligation in the platform database. Simultaneously, it signals to the algorithm that advertising is present, which might limit reach (as ads often rank lower), but compliance must take precedence over reach.

Target Group Protection and Data Check

Creators targeting young people or vulnerable groups must be aware that the EU provides special protection for children. Content explicitly aimed at children may no longer be monetized with personalized advertising. Agencies should pay close attention to this in campaigns. If a product is marketed to teens, contextual placements should be favored over microtargeting by age group, as the latter may violate the DSA. In general, advertising partners and influencers should carefully review the targeting criteria they use. Highly personalized ads on social media are under scrutiny. When in doubt, it is better to opt for a broad reach than to use risky characteristics, such as health topics or political attitudes, for target group selection. Adherence to GDPR compliance for the self-employed is also crucial here.

Understanding Algorithms and Diversification

With the new Recommender rules, which include algorithm disclosure and an option without profiling, creators gain an opportunity to reach their audience in diverse ways. It can be beneficial to actively inform your community: "Hey, add me to your favorites so you don't miss my posts in the chronological feed!" or to maintain presence on other channels like newsletters or alternative platforms. This diversification helps to avoid sole dependence on a single provider's algorithm.

At the same time, creators should study available information on algorithm factors. For example, if Instagram discloses that Frequency of interaction and Watch-Time are primary parameters in the feed, content can be optimized accordingly without resorting to manipulative growth hacks. The platforms' transparency reports can also reveal which content types have been increasingly removed or deprioritized, indicating sensitive topics or formats. Marketing teams should leverage this knowledge to adjust their strategy, moving away from problematic topics and towards content that algorithms prioritize or treat neutrally.

Documentation and Monitoring

Agencies should maintain compliance documentation for every campaign:

Monitoring is also advisable after launch. For example, randomly checking whether influencers have forgotten to label a story frame. If the platform itself provides information, such as YouTube's "contains advertising content" icon, verify that it is displayed. React immediately to violations: have the influencer edit the post, add a comment ("This post is advertising for..."), or in extreme cases, remove and repost with a correction. Prompt corrections can mitigate potential issues.

Legal Monitoring and Training

The field of DSA for creators and platform law is continuously evolving. It is beneficial to follow regular updates, whether through specialist blogs, communications from the Commission, or industry association exchanges. Agencies should consider providing basic training for their staff and talent pool. A compliance guide summarizing key points, such as advertising labeling, permitted vs. prohibited advertising practices, and complaint handling, should be created and distributed to all influencers.

A crisis plan is also essential: what to do if an official letter arrives due to an influencer post? Who contacts the lawyer? How to communicate publicly if necessary? Proactive preparation saves considerable stress in an emergency. Moreover, startups should critically evaluate claims made in terms and conditions, especially regarding data usage and moderation.

To summarize: compliance is king in the new era of DSA. Those who go the extra mile now to ensure transparency and compliance will benefit in the medium and long term. This approach not only helps avoid fines and legal disputes but also enhances your reputation with followers and customers. At a time when consumers and regulators are mercilessly exposing those who cheat, honesty is the best marketing. The Digital Services Act might initially appear to be a bureaucratic behemoth, but it helps steer the "Wild West" of influencer marketing in an orderly direction, benefiting all honest market participants.

Conclusion: A New Era for Influencer Marketing and Platforms

The DSA marks a turning point: major social media platforms are maturing, coming under supervision, and now compelled to take responsibility. For creators, influencers, agencies, and marketing departments, this signifies more clarity, but also greater accountability. Influencer marketing law is being harmonized and tightened across Europe, meaning no one can afford to operate non-transparently without risking consequences. Simultaneously, these rules create opportunities for fairer growth and enhanced planning security.

Of course, it remains to be seen how rigorously these requirements will ultimately be enforced once the initial fervor subsides. Some critics already argue that the new obligations could become overly bureaucratic and stifle innovation. However, in an industry that has long benefited from regulatory freedom, increased order may not be a negative development. To put it plainly: The DSA is not an adversary of the influencer business; it is more akin to a long-overdue MOT for the platform economy. Good, creative, and authentic content will continue to find its audience. However, the era of surreptitious tactics, whether algorithmic or through hidden advertising, is drawing to a close.

Digital entrepreneurs should view the DSA as a wake-up call to prepare thoroughly. Early compliance can even be transformed into a competitive advantage, adhering to the motto: "We uphold the highest transparency standards." This resonates well with informed customers and users. EU platform regulation, such as the DSA, may still present uncertainties in its details, but the general direction is clear: transparency, responsibility, and fairness. It is up to creators and companies to embrace these values not as a burden, but as the foundation for sustainable success.

Finally, it's important to remember that the digital attention economy remains dynamic. Regulation provides only a framework, which is ultimately shaped by its players. With this in mind, stay creative, but abide by the new rules. Then, there will be ample room for successful influencer marketing, even in a strictly regulated environment. Because one thing the DSA does not change is that good content and honest commitment remain unsurpassed by any regulation.