How the DMCC Act affects influencer and affiliate marketing

In-depth analysis

What's the issue?

The Digital Markets, Competition and Consumers Act 2024 (DMCC) replaced and expanded the Consumer Protection from Unfair Trading Regulations 2008 (CPUT).

The DMCC introduces new provisions to control fake and misleading reviews, discussed more fully in our article here and flyer here.

While much has been written about the general obligations this imposes on businesses, little has been written on the broad range of consumer reviews in scope. Businesses need to be aware that a range of content (which might not obviously seem like a consumer review) is potentially caught by the new rules.

Businesses need to make sure that they are aware of the types of consumer review in scope and that they consider the full obligations in relation to those reviews under the DMCC. This is particularly so as the sanctions for getting things wrong have increased significantly. The regulator, the Competition and Markets Authority (CMA), now has power to impose fines of up to £300k (or 10% of a worldwide turnover, if higher) for breaches without having to go to court.

What are consumer reviews?

A consumer review is any review of a product, a trader or any other matter relevant to a transactional decision. That is potentially very broad.

It includes consumer reviews, whether of products, services, digital content or traders, whether online or off, whether of a business’s own practices or another’s, and whether applying to the practice itself or matters such as delivery or after-sales service. Text, speech, graphic symbols, aggregated data, stars and rankings are all in scope.

It means that reviews on websites are caught (even if just thumbs up/down), as are reviews in print advertising and marketing letters, as well as star ratings provided by search engines. However, businesses should also be aware that content can also constitute a review even if it is not apparent at first sight. There is particular scope to be caught out by third party content. Reviews by influencers are obviously in scope. However, so are other ad hoc reviews. For example, the provision of a free night's stay in a hotel to a content creator in return for a review would be caught. Likewise, editorial content which actually constitutes a product review, will be in scope.

What are the main obligations?

Incentivised reviews must not be concealed

It is perfectly acceptable to incentivise a review (through payment, gifts, discounts, freebies, commissions or other). However, where reviews are incentivised, this must be made apparent (eg by using unambiguous tags or labels like “#Ad”). Failure to do so would breach the various DMCC provisions around "concealed incentivised reviews".

This is particularly relevant to influencers but should also be kept in mind for dealings with other brand ambassadors and anyone else who delivers ad hoc or regular reviews. The latter could include a content creator who receives a free night's stay in a hotel in return for a review of that hotel or a member of the public who receives a free electrical device in return for a review of that item. It does not matter whether or not the reviewer has an obligation to produce a review or whether any review produced is positive or negative – the DMCC provisions about not concealing an incentivised review apply.

This provision should also be kept in mind for content such as affiliate marketing (advertorials) and similar – content that looks like editorial content but which, in fact, is a form of advertising. This is because the publisher usually reviews the item in question and is paid a commission in return. This commission would qualify as an incentive and so the DMCC provisions about not concealing that a review has been incentivised would kick in.

There is nothing especially new in this. There has long been an obligation that advertising (whether by influencers, brand ambassadors or in the form of advertorials etc) must be correctly labelled as such, with specific provisions in the old CPUT Regulations and CAP and BCAP Codes on this. (See eg the MailOnline and AmazingAir ASA adjudications on advertorials and the requirements to label them as adverts and make clear that a commission "will" be paid (if that is the case)). It has also been long clear that both the business and the third party (influencer, affiliate marketer etc) are responsible for compliance despite the fact that the ads/reviews in question may have been created solely by the third party without any input from the business itself. These provisions are replicated in – and continue to apply under - the DMCC.

The change is that the new DMCC provisions around fake and misleading consumer reviews will now also apply where the content in question falls within the definition of an incentivised review. This is a further reason why much of this content should be correctly labelled as advertising. Since it is quite possible that businesses will be held liable for the wrongs of their influencers and other third parties, compliance is key.

Reviews must reflect the reviewer's genuine experience

The DMCC defines a fake review as any review that purports to be, but is not, based on a person's genuine experience. Where a review does not reflect the reviewer's genuine experience of the product, it could be classified as a "fake review" and fall foul of the various DMCC provisions that prohibit them. Again, this is particularly relevant to those who are incentivised to give reviews.

The practice of giving "always positive" reviews that some influencers and third parties adopt (especially where they have an on-going relationship with a brand) might come under the spotlight. Reviewers of all kinds - and the businesses that engage them – should keep firmly in mind the DMCC requirement that the review must represent the reviewer's genuine experience of the product.

Obligations on publishers of consumer reviews

Those who publish consumer reviews or consumer review information have additional obligations to ensure that they do so in a way that is not misleading. They also have various positive obligations to take reasonable and proportionate steps to prevent prohibited reviews from being published and to remove them from publication. A publishers is anyone who disseminates or makes available by any means reviews in scope.

While in most cases, influencers and the like won't be publishers under the DMCC, they will be publishers if they publish consumer reviews on their own websites. Likewise, media businesses that publish advertorials in their own publications will also be publishers under the Act. In light of this, it is imperative that businesses ensure compliance with these obligations by their third-party reviewers.

What should businesses do?

The CMA has said that it will not take enforcement action under the new provisions around fake and misleading reviews until July 2025, and will focus on supporting businesses with their compliance efforts before then. Nevertheless, businesses should be prepared to be fully compliant. Key actions to take include:

Conduct regular audits to identify all potential consumer reviews (whether by influencers, brand ambassadors, the media or others) in scope and all internal teams/business areas impacted.

Make sure that there are adequate processes in place to actively monitor such third-party content to spot non-compliant statements or disclosures. Simply inserting restrictions in influencer/third party contracts is insufficient; active monitoring and oversight for compliance are vital.

Manage any third-party agencies who have been engaged to oversee influencer and other third-party relationships. The obligations on agencies to monitor content and take action should be clear. Preferably, brands themselves should be actively monitoring or at least reviewing the work of their agencies.

Ensure that there are adequate provisions in influencer and other third party agreements and templates mandating compliance with the DMCC and think carefully about whether any provisions in agreements cut across the DMCC obligations (including the obligation for reviews to represent the reviewer's genuine experience).

Make sure that there are adequate provisions in agreements and templates allowing the brand to take action where the third party gets things wrong. This should include the ability to require content to be altered or taken down if it does not comply, as well as rights of termination for persistent breaches.

Where third parties persistently get things wrong, options to sever the relationship should be considered. The risk of influencers getting things wrong is not theoretical. A 2025 ASA report highlighted that over 40% of influencers reviewed had no/inadequate disclosure, with the worst offenders being in the fashion and travel sectors.

Review and update (as needed) any policies covering how to engage with influencers, content creators, brand ambassadors, media businesses and others who provide consumer reviews.