Who's Liable for a Defective Product an Influencer Recommended?

No — an influencer who simply recommends or promotes a product that later turns out to be defective isn't, as a rule, liable under EU product liability law; that risk sits with the manufacturer, importer or distributor. The EU's new Product Liability Directive, (EU) 2024/2853, doesn't change that baseline, but it does expand who can be held liable and it materially raises the stakes for one specific case: when a creator's own name or brand appears on the product itself.

This is practical guidance from Make Influence, not legal advice. Use it to understand where liability typically sits and which deal structures raise your own exposure — get the specific legal assessment of your own product and collaboration from a lawyer.

The EU's new Product Liability Directive: what's changing, and when

Directive (EU) 2024/2853 on liability for defective products was adopted on 23 October 2024 and entered into force on 8 December 2024. It repeals the original 1985 Product Liability Directive (85/374/EEC), which Denmark's current product liability act is still based on. Member states must transpose the new directive into national law by 9 December 2026, and it applies to products placed on the market after that date — products already on the market before then stay under the old rules.

Per Cleary Gottlieb's own analysis of the directive, the expanded product definition explicitly covers "operating systems, firmware, computer programs, applications, and AI systems" — free and open-source software developed outside commercial activity remains excluded.

Who in the chain can actually be held liable if a product is defective?

The directive works through a cascading chain of liable operators — each next link only becomes relevant if the one before it can't be identified:

An influencer who posts a sponsored recommendation for a product they neither manufactured, imported nor sold sits outside this chain entirely. The directive's text doesn't mention influencers, content creators or social media at all — liability attaches to the commercial role (manufacturer, importer, distributor, platform), not to whoever generated attention for the product.

The exception: when the creator's own name is on the product

There's one situation where that baseline doesn't hold: Article 8 of the directive carries over the "apparent manufacturer" rule from the old directive — anyone who puts their own name, trademark or other distinguishing feature on a product, and by doing so presents themselves as its producer, can be treated as the manufacturer in law, regardless of who actually made the product.

That makes the rule directly relevant to co-branded product collaborations, where a creator's name appears on the packaging or the product itself in exchange for an advance and a royalty. In that structure, the creator is no longer just someone recommending a product — to the consumer, they appear as a (co-)producer, which is exactly what Article 8 targets.

Creator storefronts and TikTok Shop: an open question

A related but genuinely unresolved question: if a creator sells a product directly through their own shop tab on TikTok, an LTK shoppable link, or something similar — without their own name or brand on the product — does that fulfilment- or platform-like role fall under Article 8, the distributor rule, or the platform rule? We haven't found official EU or Danish guidance that answers this directly for creator-run sales channels specifically; the directive's text is written with large marketplaces and fulfilment companies in mind, not individual creators' sales channels. Treat this as an open question, not a settled one — and get it assessed specifically if a collaboration genuinely involves a creator handling the sale or fulfilment of the product themselves.

Danish implementation: from a 40-year-old law to a new one

Denmark's current product liability act (Consolidated Act no. 261 of 20 March 2007, originally from 1989) still implements the old 1985 directive. Denmark's Ministry of Justice has sent a draft bill for a new product liability act out for consultation, aimed at transposing (EU) 2024/2853 and modernising the rules for software and AI — on the same deadline as the directive itself: no later than 9 December 2026.

The draft carries over the directive's expanded circle of liable operators (authorised representatives, fulfilment service providers, online platforms under certain conditions) and the new evidence rules, under which courts can order a defendant to disclose relevant material and can ease the claimant's burden of proof where it would otherwise be disproportionately difficult. That last point matters for a brand specifically: it becomes easier, not harder, for an injured consumer to bring a product liability claim — which raises the value of having your own liability allocation with influencer partners settled in advance, rather than discovering the gap once a claim is already underway.

What this means for the contract between a brand and an influencer

Statutory product liability isn't the same as contractual liability allocation — and that's where a brand and a creator actually have influence over their own risk, regardless of what the law otherwise says. In Make Influence's experience, this is a point that almost never comes up in an ordinary sponsored-post agreement, because product liability doesn't feel like a risk that belongs to influencer marketing — but it becomes relevant the moment a collaboration moves from "recommendation" to "co-producer".

• Ordinary sponsored collaboration: usually no need to negotiate product liability specifically — the risk already sits with the brand/manufacturer under the law. See What to Put in an Influencer Contract for the 12 terms an ordinary contract should cover.
• Co-branded product or the creator's own brand: negotiate explicitly who carries the product liability insurance, and who has the right to claim indemnification from the other party if a defect leads to a claim.
• Creator-driven sales channels (shop tags, storefronts): flag the open question above with your own legal advisor before scaling that kind of collaboration up.

A morality clause protects a brand from a creator's own bad conduct after signing — see A Brand Safety Checklist for Influencer Partnerships — but it doesn't solve the product liability question. These are two distinct risks that each deserve their own line in the contract, not one shared "liability clause" assumed to cover both.

If the product already sits inside a stricter regulated category — alcohol, finance or pharma — product liability comes on top of, not instead of, those rules. See Influencer Marketing in Regulated Industries: Alcohol, Finance and Pharma in Denmark for what each vertical specifically adds.

This directive-level liability is also a different question from the brand's own product-safety duty at the point a sample first goes out — see what duty of care does a brand have when sending an influencer a product sample with a real safety risk? for that earlier, pre-launch question.

Worked example: why an indemnification clause is cheap insurance (hypothetical)

The figures below are a made-up worked example to illustrate the point — not a real case, and not a prediction of what any specific claim would cost.

A creator signs a co-branded skincare deal with their own name on the bottle, for a DKK 50,000 advance plus an 8% royalty. Product liability is never mentioned in the contract. A year later, a batch turns out to be defective and causes an allergic reaction in several consumers. Because the creator's name is on the bottle, Article 8's "apparent manufacturer" rule can put them on the hook alongside the actual manufacturer — even though they never touched production. Had the contract instead included an explicit clause requiring the brand (as the actual manufacturer) to indemnify the creator against claims brought under product liability rules, the creator's own exposure would in practice have been eliminated — for a clause that costs nothing extra to negotiate. The only "price" is someone remembering to raise the question before the contract is signed.

FAQ

Can an influencer be personally sued if a product they promoted harms a consumer?

Under the product liability rules themselves, usually not — unless the creator's own name or brand is on the product, per Article 8's "apparent manufacturer" rule. A consumer can in theory try to bring a claim against multiple parties at once, but the party who actually carries the risk under the law is the manufacturer, importer or distributor.

Does the new directive already apply now?

It entered into force on 8 December 2024, but it only has to be transposed into Danish law by 9 December 2026, and it only applies to products placed on the market after that date. Until then, Denmark's current 2007 product liability act (based on the 1985 directive) applies.

Does an ordinary liability insurance policy cover product liability for a creator?

It depends entirely on the policy — a general professional liability policy doesn't automatically cover product liability, and certainly not automatically if the creator technically counts as a manufacturer under Article 8. Confirm this specifically with the insurer, particularly before entering a co-branded deal.

Does it matter that the product is software or an app rather than a physical product?

Yes — that's one of the biggest changes in the new directive. Software, including AI systems, is now explicitly covered by the product definition, where it was previously unclear. That makes the liability chain relevant to far more digital products and partnerships than before.

Should we wait for the Danish law before acting on any of this?

No. The liability allocation between brand and creator is a contract term you can negotiate now, regardless of when the Danish law is finally passed — that's exactly the point of putting it in the contract instead of waiting for the law to settle it for you.

What if the product actually gets recalled, not just found individually defective?

That's a related but different, more operational question. See what happens to an influencer campaign when the product gets recalled for what the EU's General Product Safety Regulation requires and what to do about a sponsored post that's still promoting the now-recalled product.

What if a consumer just wants a refund or repair, not a liability finding?

That's a straightforward consumer complaint, not a product liability question, and it goes through Denmark's ordinary consumer-complaint system instead — first to the seller, then to Mæglingsteamet for Forbrugerklager and Forbrugerklagenævnet if the price qualifies. See Forbrugerklagenævnet: how a complaint over an influencer-recommended product actually gets handled for that process, the price thresholds, and why it's the seller — not the influencer — who the complaint is against.

Does any of this apply differently for a toy specifically?

Yes — for toys specifically there's a more detailed sector rule on top of this general one. The EU's new Toy Safety Regulation ((EU) 2025/2509) uses the same "markets it under their own name or trademark" test to decide who counts as the legal manufacturer, but adds toy-specific duties — CE marking and a digital product passport — that apply from 1 August 2030. See the EU's new Toy Safety Regulation: what it means for creators reviewing and unboxing children's toys for what changes and when.

Make Influence's operational perspective

In our view, the most important point in this article isn't the new directive itself, but the shift in when product liability becomes relevant for a creator at all: the moment a collaboration moves from "recommending someone else's product" to "putting your own name on the product". We recommend that transition always trigger a specific question in contract negotiation — who holds the insurance, and who indemnifies whom — rather than assuming the ordinary collaboration terms already cover it.