On June 9, 2023, an expected law on the activity of influencers entered into force in France after an accelerated legislative procedure to define their activities and regulate their presence on social networks.
The stated objective of this law is to protect both influencers and consumers of content on social networks, especially in view of possible deviations and abusive practices.
Accordingly, the law complete existing provisions notably about advertising contents and child labor.
DEFINITION OF INFLUENCERS AND AGENTS OF INFLUENCERS AND ACCOUNTABILITY
The law defines influencers and their agents to establish a clear framework for this emergent activity.
The influencer is the natural or legal person who, for a fee, mobilizes his notoriety among his audience to communicate to the public established on French territory, by electronic means, content aimed at promoting, directly or indirectly, goods, services, or any cause.
Under French law, the influencer agent represents, for a fee, influencers, or their representatives. It is established that influencer agents must take all necessary measures to ensure the defense of the interests of the persons they represent, to avoid situations of conflict of interest and to guarantee the compliance of their activity with all legal provisions.
The relations between influencers and agents and/or advertisers must be established by written agreements, beyond a threshold of remuneration or in kind benefits (to be defined by decree), including mandatory clauses: identification of the parties, tax residence, nature of the duties entrusted, definitions of monetary consideration or in kind benefits, rights and obligations of the parties, in particular in terms of intellectual property rights and submission to French law if the target audience is French.
To effectively protect consumers of influencer contents, the law provides for joint and several liability between the advertiser, the influencer, and his agent.
It is also understood that in the context of dropshipping operations, influencers are fully responsible to the buyer. Influencers must therefore inform the buyer in accordance with the Consumer Code, indicating in particular the essential characteristics of the product or service, the delivery date or deadline, withdrawal period, etc. The advertiser must also indicate the identity of the supplier and ensure both the availability of the products and their legality, notably that they are not counterfeit products.
Finally, given the specificities of the sector and the need to guarantee the effectiveness of the measures taken, influencers abroad, i.e. in a country other than a Member State of the European Union, of the Swiss Confederation or of the European Economic Area, must appoint a legal representative in the European Union and take out civil insurance in the European Union when they target a public in France.
ADVERTISING CONTENT, PROHIBITIONS, AND INFORMATION OBLIGATIONS
The activity of influencers falls under the advertising sector, which is clearly established by the law. It must be identifiable as such is subject to information obligations. It is also subject to the rules applicable to the advertising sector and to specific prohibitions.
Thus, the promotion of goods, services or any other cause by influencers must include the mention « Advertising » or the mention « Commercial collaboration ». This statement must be clear, legible, and identifiable on the image or video, in all formats, throughout the whole promotion.
In addition, content containing images that have undergone image processing to refine or thicken the silhouette or to change the appearance of the face must include the mention: « Retouched images » and content containing elements created by an artificial intelligence process to represent a face or silhouette must include the mention: « Virtual images ».
In addition, influencers must comply with the legal framework on the advertising and promotion of goods and services and in particular:
– The French law so-called “Loi EVIN” banning and/or regulating the advertising of alcohol and tobacco
– The French Consumer Code, in particular with regard to the prohibition of false or misleading content pertaining to the products or services promoted and the regulation of comparative advertising
– Standards on fatty, sweet and savory products, and the obligation to insert prevention messages.
In addition, the law expressly prohibits influencers from promoting many products and services whose promotion to young audiences is considered problematic such as aesthetic surgery and medicine, certain financial products and services, therapeutic abstention, nicotine-based products, subscriptions to sports advice and predictions…
PROTECTION OF MINOR INFLUENCERS
To consider the specificities of the sector, which involves many young and underage influencers, specific measures are established to protect child influencers.
The law thus extends the rules on the work of minors under 16 years of age on video-sharing platforms, set by the French law dated 19 October 2020 are extended to all online platforms and social networks such as Instagram, Snapchat or Tiktok.
In the case of minors under the age of 16, their employment as an influencer requires prior approval from the state services and 90% of the sums resulting from their activities of commercial influence are deposed on an escrow account until they reach legal majority.
Between 16 and 18, the unemancipated minor influencer may create and manage a single-member company or take over and manage a sole proprietorship with limited liability carrying out this activity, with the authorization of his legal representatives who will have decision-making power over certain acts, as detailed in said authorization.
The unemancipated minor influencer may also be hired by a company carrying out a commercial influence activity, subject to the authorization of the legal representatives, who must in addition sign the employment contract.
In view of the above, influencers and their agents must consider and comply with many provisions as part of the development of their relationships, activities, and content. In this context, it is wise to reach out to a specialized lawyer to obtain effective and adapted legal support.
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