Influencers and Misleading Advertising: What Determines Their Legal Liability?

Authors: Juliette Oger-Chambonnet and Paul Déry-Goldberg 

In the age of social media, influencers play a central role in advertising campaigns. Their proximity to their audience lends weight to their recommendations—yet it is precisely this proximity that calls for rigorous oversight. The line between personal opinion and sponsored content is often blurred—and can sometimes be misleading. What legal obligations do influencers have, and what risks do they face if they engage in deceptive advertising?

A Legal Framework in the Making

In Canada, several laws and guidelines already govern influencer marketing, although legal precedent remains limited in cases directly involving influencers in misleading advertising. The applicable legal framework is primarily based on:

• The Competition Act, which provides for sanctions in the event of misleading commercial practices;
• The Consumer Protection Act (Quebec), which protects consumers against misleading or incomplete representations;
• The Canadian Code of Advertising Standards, which is overseen by Advertising Standards Canada and sets the criteria for acceptable advertising practices in Canada;
• The Competition Bureau’s guidelines, which relate to deceptive marketing practices, particularly influencer marketing.

Foreign Case Law: A Warning from France

While Canadian case law remains limited on these matters, other jurisdictions have been active in imposing severe sanctions. In France, an influencer was recently sanctioned by the General Directorate for Competition Policy, Consumer Affairs, and Fraud Control (DGCCRF) for promoting an online trading training platform without disclosing that she had been paid for the endorsement. She shared her testimonial as though it were a personal experience, when in fact it was a paid advertisement. She was found guilty of engaging in deceptive commercial practices and was fined 20,000 euros.

Three Key Obligations for Quebec Influencers

1. Disclose any significant relationship with the advertiser

The most essential obligation is transparency. An influencer must clearly and visibly disclose any “material connection” with an entity he or she is promoting ^[1]. A connection is deemed “material” when it is likely to influence the assessment of the influencer’s objectivity, notably through remuneration or a contractual or personal relationship with the brand.

Some best practices:

• Mention descriptive keywords, such as #advertising, #sponsorship, #partnerXYZ, when introducing your content.

• Do not hide the information within a long list of hashtags or in the profile description.

2. Use clear, simple, and accessible language

Disclosures should be readily comprehensible to the target audience. The standards require that the audience recognize, at first glance, that the content is sponsored ^[2].

3. Base statements on a genuine and authentic experience

Influencers should be honest in their statements and share insights based on their own experience with the product or service ^[3]. It is specifically prohibited to:

• Make unrealistic promises or unverifiable claims.
• Make false representations regarding the profitability of a business opportunity.

What Are the Possible Sanctions?

The Role of Advertising Standards Canada (ASC)

ASC is a self-regulatory organization that addresses consumer complaints. While it does not have the authority to impose fines, it can request that an advertiser or influencer remove content deemed to be problematic. If the advertiser or influencer refuses, the matter may be referred to the Competition Bureau for further investigation.

The Competition Bureau: Civil and Penal Sanctions

The Competition Bureau is an independent agency responsible for enforcing the Competition Act. It holds significant investigative authority and can intervene when advertising content is considered misleading. Offenders may face penal or civil proceedings.

Sanctions can include fines of up to $200,000 and/or imprisonment for up to one year upon summary conviction. If prosecuted by indictment, the offender may face a fine at the court’s discretion and/or imprisonment for up to 14 years ^[4].

The Bureau may also ask the court to impose administrative monetary penalties of up to $1,000,000 for an individual and up to $15,000,000 for a corporation in the case of repeat offences ^[5].

In Quebec: The Office de la protection du consommateur (OPC)

The OPC ensures the enforcement of the Consumer Protection Act and has extensive authority to conduct investigations. It can impose minimum fines ranging from $2,500 to several hundred thousand dollars for misleading advertising ^[6].

Need Support?

Determining if and how the law applies to your activities as an influencer can be complicated. If you have any doubts or require specific legal support, our team is here to help you. We can assist you in evaluating legal risks, establishing compliant disclosure procedures, and adapting your practices to align with the requirements of Canadian authorities. Whether you’re an influencer, a brand, or an agency, we’re here to proactively and securely equip you with the right tools.

[1] Ad Standards, Interpretation Guideline No. 5 – Testimonials, Endorsements, and Reviews, October 2020, available online: https://adstandards.ca/code/interpretation-guidelines/

[2] Ibid.

[3] Section 1(a), Canadian Code of Advertising Standards; Sections 219 and 229, Consumer Protection Act.

[4] Section 52(5), Competition Act, R.S.C., c. C-34.

[5] Ibid., Section 74.1.

[6] Title II, Consumer Protection Act.