Digital Influencers: Liability for Hidden Advertising and Misleading Ads

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

Influencers who promote products can be held civilly liable for misleading advertising, alongside the brands, under Brazil’s Consumer Protection Code and the rules of CONAR, which require clear disclosure of all paid content.

The Duty to Identify Advertising Content

When an influencer receives payment, free products, or any other benefit for mentioning a brand, the content stops being a spontaneous opinion and becomes advertising. Article 36 of the Consumer Protection Code (Código de Defesa do Consumidor) requires that advertising be presented in a way that lets the audience identify it easily and immediately. Failing to disclose this information amounts to what the law calls clandestine advertising, which is prohibited.

The National Advertising Self-Regulation Council (CONAR) built this duty into its guide on advertising by influencers. Its guidance is that terms such as publi, publicidade (advertising), or parceria paga (paid partnership) should appear in a visible way, set apart from the rest of the post. Tags buried at the end of a long text, or lost among dozens of others, do not meet the clarity requirement.

Transparency protects both the public and the content creator. A consumer who feels swayed by a recommendation that seemed disinterested but was in fact paid has grounds to challenge the practice before consumer protection agencies.

Liability for Misleading Advertising and Fraudulent Products

Simply promoting a product does not shield an influencer from the consequences of what the promotion claims. If an ad promises results that do not exist, hides defects, or presents information capable of misleading consumers, it is misleading advertising under Article 37 of the Consumer Protection Code. Liability can reach everyone in the chain who benefited from the message.

Brazilian case law has recognized that the influencer is part of the consumer relationship when acting as the link between supplier and public. By recommending a fraudulent product, a disguised pyramid scheme, or a service that does not deliver what it advertises, the creator can be held jointly and severally liable for the harm suffered by followers who trusted the recommendation.

That liability becomes more serious when the influencer knew, or should have known, that what they were promoting was unsuitable. Fame and reach heighten the duty of care, because the trust the public places in an influencer is precisely the asset that makes the partnership valuable to the brand.

Before accepting any campaign, it is wise to check the advertiser’s reputation, the truthfulness of its claims, and whether there is technical proof behind any promised results. Doing this homework up front lowers the risk of the creator being dragged into lawsuits filed by injured consumers.

The National Advertising Self-Regulation Council (CONAR) built this duty into its guide on advertising by influencers.

Legal Risks of Barter Agreements

Barter, where the influencer receives products or services instead of cash, is a common practice, but it does not remove legal obligations. Even without a payment of money, there is economic consideration, and the content is still advertising, subject to the duty of disclosure and the rules on truthfulness.

The lack of a written contract is one of the main weaknesses of this arrangement. Without a document that sets out the scope of the promotion, the number of posts, the deadlines, and each party’s responsibilities, disputes over what was actually agreed become common. Putting the deal in writing protects the creator from abusive demands and defines where their commitment ends.

The contract should include clauses on responsibility for any product defects, the right to decline to promote the product if its quality does not match what was promised, and what happens with image rights. These precautions turn a barter arrangement into a balanced relationship rather than a silent source of legal liability.

Frequently Asked Questions

When does a post have to be labeled as advertising?

Whenever there is any benefit in exchange for the promotion, whether payment, free products, or barter, the post must be identified as advertising. The label must be clear and visible, using expressions such as publi or parceria paga (paid partnership), so that followers immediately understand the commercial nature of the content.

Who is liable when a promoted product harms a consumer?

The supplier and, in many cases, the influencer as well. By taking part in the consumer relationship as the link between brand and public, the creator can be held jointly and severally liable for damages caused by misleading advertising or a fraudulent product. Liability increases when the creator could have known that what was recommended to followers was unsuitable.

Why should barter agreements with brands be put in writing?

Because barter is also advertising and creates legal obligations, even when no money changes hands. A written contract defines scope, deadlines, and responsibilities, protects against abusive demands, and sets out clauses on product defects and image rights, preventing disputes over what the parties agreed to.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.