Influencers Now Face Broader Independent Liability in Denmark

For many years, influencers in Denmark were in practice merely subject to criminal sanctions under the MPA when a collaboration was in place with a company (an advertiser). With several recent decisions from the Danish Consumer Ombudsman (Forbrugerombudsmanden), influencers now in our view face independent liability for a broader range of activities, even in the absence of a commercial collaboration with a company.

The Danish Consumer Ombudsman has, with recent decisions in 2024, explicitly established that influencers are to be treated as independent business traders under the MPA. According to Section 2(1)(2) of the MPA, a trader is defined as: “…any natural or legal person who is acting for purposes relating to his trade, business, craft or profession and anyone acting in the name of or on behalf of a trader”.

The Danish Consumer Ombudsman assesses that influencers are independent businesses in the same way as traditional businesses, particularly when influencers possess a CVR number (company identification number), indicating their status as independent traders. The consequence of reviewing influencers as independent traders under the MPA is that an influencer with a Danish audience must comply with all the same sections within the MPA as other normal businesses in Denmark when engaging through the influencer’s social media profiles.

Previously, influencers were in practice only penalised for violations related to advertising in collaboration with other businesses, with the main emphasis on hidden advertising. This shift marks a significant change in enforcement, as influencers must now ensure that all posts, regardless of commercial intent, comply with the MPA.

However, this new practice from the Danish Consumer Ombudsman is not indicative of a new legal framework but rather a more stringent application of the existing rules.

Several influencers have expressed concerns regarding the new practice from the Danish Consumer Ombudsman. For instance, beauty bloggers may no longer be able to review products they bought themselves and food influencers may be restricted in making health claims about the ingredients they purchased.

The Danish Consumer Ombudsman decided to report many influencers to the police for a total of nine violations of the MPA and to issue warnings to a few other influencers for a total of 31 violations. These cases have significant implications for influencers, especially those who primarily target children and young people under the age of 18. The focus of the Danish Consumer Ombudsman was on the following subjects and cases.

Influencers were penalised for promoting alcohol and energy drinks to children and young people under the age of 18 notwithstanding that no advertisement agreements were entered into with these brands. Marketing of such content is unsuitable according to Section 11(2) of the MPA (Case No 24/05922, 24/06343 and 24/06344 of 8 October 2024). In addition, cosmetic procedures, tattoos and sugar dating could generally also be prohibited from influencers’ platforms as these services and products are also considered unsuitable for children and young people.

Posts describing or depicting dangerous situations without pedagogical or factual justification have also been considered illegal. Such content is deemed irresponsible and potentially harmful, especially to younger audiences, and violates Section 11(1) of the MPA.

Several influencers were found in violation of Section 9 of the MPA for encouraging children to buy products through persuasive language and direct links to products (Case No 24/06341, 24/06340 and 24/06342 of 8 October 2024).

The use of children in marketing is heavily regulated in Denmark. Marketing practices directed at children and young people under 18 must not be conducted on or through social media profiles that belong to or appear to belong to children and young people under 15. Additionally, marketing directed at this age group must not feature children under 15 unless there is a natural connection to the advertised product, such as children's clothing or toys. Such marketing can be a violation of Section 11(3) of the MPA.

It was against the rule of hidden advertising under Section 6(4) of the MPA when influencers mentioned their products or businesses without being marked as advertisements in the same way as if an agreement had been entered into with an advertiser (the Danish Consumer Ombudsman’s Case No 24/06341, 24/06343, 24/06342, 24/06340, 24/05924, 24/06344 and 24/05923 of 8 October 2024).

The Danish Consumer Ombudsman places particular emphasis on protecting children and young people from exploitative marketing practices. Influencers with a significant following of minors must adhere to these stringent rules. When a non-unessential number of an influencer’s followers is under the age of 18, the influencer’s marketing content is considered “aimed at” children and young people. In one specific case, the Danish Consumer Ombudsman assessed that an influencer's audience of merely 12% under the age of 18, was enough to consider the marketing as aimed towards children and young people (the Consumer Ombudsman’s Case No 22/00789 of 11 April 2022).

Influencers are subject to the newly increased fine model under the MPA in the same way as other companies. The starting point for calculating the fines for influencers will thus also be the revenues generated through the influencer’s business. Danish lawmakers are also recognising influencers’ power and are implementing stricter regulations to ensure responsible marketing. For instance, influencers were specifically mentioned in the new act proposal L26 to amend the MPA, requiring influencers to label retouched advertising of themselves and other people used in images and videos. It will be interesting to see whether the Danish courts agree with this assessment from the Danish Consumer Ombudsman in terms of how broad influencers’ liability should be.