Unfair competition and unfair commercial practices of influencers: Legal analysis in the Slovak and comparative context.
Influencer marketing has become a dominant and highly effective form of digital advertising, fundamentally changing traditional communication strategies. Its rapid, often unregulated growth poses significant legal challenges in the areas of unfair competition and consumer protection. This article provides a comprehensive legal analysis of influencer misconduct, including hidden advertising, misleading claims, buying fake followers, and writing fake reviews. The article systematically maps and evaluates the Slovak legal framework, covering private law regulation of unfair competition and public law regulation of unfair commercial practices. The methodology includes analysis of relevant Slovak and Czech legislation, doctrine, and application practice. An in-depth, comparative analysis of the German Federal Court of Justice, Spanish and Czech case law offers valuable interpretive guidance. The paper also assesses national self-regulatory mechanisms and gives recommendations de lege ferenda to strengthen legal certainty and protection for all in the digital market.Key words:
influencer marketing, unfair competition, unfair commercial practices, hidden advertising, consumer protectionZLOCHA, Ľ., STRÉMY, J. Unfair competition and unfair commercial practices of influencers: Legal analysis in the Slovak and comparative context.
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Právny Obzor,
108
, 2025, special issue, pp. 61-81.Introduction
Digital transformation has radically changed how entrepreneurs communicate with customers.
1)
In the past decade, influencer marketing has become one of the most significant and dynamic marketing phenomena. The Council of the European Union concludes that influencers have an inherent impact on individuals, communities, society and the media ecosystem.
2)
This form of social media marketing, using influencers to place products and services in online communities, is now a strategic pillar among companies' digital tools. Economic importance is growing exponentially, with global influencer marketing spending in the billions of euros per year, and forecasts show continued growth.
3)
Influencer marketing rises due to new platforms, new audience interaction models, and increased advertising investment.
4)
This area now covers more than cosmetics or clothing; it increasingly affects finance and banking via finfluencers.
5)
Social networks have gradually replaced traditional media. Now, we turn to Instagram, YouTube, TikTok, and other platforms daily, rather than traditional news channels.
This rapid development is outpacing legislative and regulatory responses. It creates a legal environment of uncertainty and risk. Followers often feel close to their favourite influencers, trusting them more than traditional celebrities in advertising. However, this authenticity is often a commercial construct, which can lead to legally problematic practices.
6)
Influencers' posts, such as blogs, reviews, videos, and stories, often seem like authentic recommendations but hide their commercial nature. This results in hidden advertising. Other issues include unsubstantiated product claims, fake follower purchases to inflate market value, misleading reviews, and aggressive practices targeting vulnerable groups, especially children and youth. These harm consumer confidence and distort competition, hurting honest competitors.
7)
In Slovakia, legal practice and doctrine have barely addressed the regulation of influencer professional services. The article's basic premise is that the rise of influencers requires a legal framework for balance in the audiovisual ecosystem, subjecting all participants to clear rules. In Spain, for example, increased influencer activity led to the Royal Decree 444/2024. Under certain economic and audience conditions (creators with annual sales of € 300,000 or more, with 1 million followers on a single video-sharing platform, or 2 million for their entire business), it treats influencers as users of particular importance under Act No. 13/2022 on the general audiovisual communication, mainly for advertising obligations.
8)
This scientific article contends that the Slovak legal framework for regulating unfair competition and unfair commercial practices by influencers is currently insufficient and requires systematic improvement. It provides a comprehensive legal analysis by mapping and critically evaluating this framework - covering private law (the Commercial Code) and public law (the Consumer Protection Act, Advertising Act, and Media Services Act). The article compares these regulations with foreign approaches, focusing on case law from the German Federal Court of Justice and relevant Spanish and Czech decisions as interpretative guidance for online contexts. Influencer marketing in these jurisdictions is expanding annually, aligning with global trends. Chapter one defines the legal status of influencers and key terms. Chapter two analyzes unfair competition from a private law perspective. Chapter three examines unfair commercial practices affecting consumers. Chapter four gives a comparative analysis of foreign case law. Chapter five evaluates both regulatory and self-regulatory mechanisms in Slovakia. The conclusion summarizes key findings and presents
de lege ferenda
recommendations to strengthen legal regulation and enforcement.1. Legal status of influencers and definition of basic terms
To understand influencer marketing liability, we must clearly define influencers and related parties. This chapter examines the influencer's legal definition, status as an entrepreneur or competitor, and position under specific laws.
The English term "influence" is rarely translated into Slovak, and "influencer" has become a common part of the vocabulary. From a marketing perspective, an influencer is a person who, through their activity on social networks, has built a community of followers whom they can influence and shape in shaping their opinions and purchasing behaviour. Conceptually, influencers can be defined as "individuals who have the ability to influence consumer behaviour much more effectively than traditional advertising, which is why marketers and brands turn to them to promote their products and services."
Influencers have a significant impact on the public. They interact daily with thousands offollowers on social media and digital platforms. This creates a "parasocial relationship", making it easier for recipients to access information about certain products or services these individuals offer. However, our research shows that influencers often conceal the advertising nature of their digital content, misleading or deceiving followers. Influencers can influence consumers - followers and subscribers - in a more professional, subtle, and personal way than traditional advertising.
However, from a legal perspective, this general definition is insufficient. The main document for legal qualification is
the Commission Guidelines interpreting Directive 2005/29/EC on unfair commercial practices ("Guidelines"). The Guidelines define an influencer
as a natural person or virtual entity with aboveaverage reach on a platform who can assess their influence. Crucially, the Guidelines classify influencers, regardless of follower count, as "traders" under the Directive or as persons representing a trader.This classification is groundbreaking because it directly applies the entire consumer protection regime to influencers, including the requirement for professional care. This is not just a formal definition; it is a critical legal trigger that activates the entire apparatus of consumer law. This creates a significant gap between an influencer's self-perception as a "creator' or "personality" and their legal reality as a regulated business entity. This mismatch is one of the main causes of widespread non-compliance. An individual who starts their activity on social networks as a hobby and gradually gains followers becomes,
de facto,
a "trader" - a professional, from a legal point of view, at the moment of accepting their first commercial cooperation (e.g., even barter).
9)
In doing so, they take on a whole range of obligations of which they are probably unaware, in particular the obligation to act with professional care, which includes knowledge of and compliance with the laws and codes of ethics in the sector. Statistics from a Europe-wide inspection campaign, which show that up to 78 % of influencers engage in commercial activities but only 36 % are formally registered as entrepreneurs, provide empirical evidence of this profound discrepancy between action and understanding of one's own legal status.
10)
According to studies, 9 out of 10 Spanish fashion influencers are unaware that the