For several months, the proposed influence law has been making headlines.
Its purpose? To regulate the work of content creators, including influencers. Regularly criticized, they are sometimes accused of engaging in disguised advertising under the guise of recommendations and advice to their followers.
It is now done, at least in part: the influence law of June 9, 2023, was unanimously adopted by Parliament and the Senate to combat the abuses observed on social networks for several years, and to regulate content creation by influencers. We now await the upcoming decrees to specify its application…
As an “influencer, brand, agency, or community platform”, it is now essential to know and align with these measures, the cases of application, mandatory disclosures, and regulated sectors.
What are the consequences of the influence law? How are partnerships between a brand and a content creator now regulated? What is now prohibited and sanctioned? Explanations.
Table des matières
An Essential Clarification: Definition of Influencer and Influencer Agency
The influence law of June 9, 2023 concerns several actors in the influence sphere, namely: influencers (including minors), platforms hosting their content, and influence agencies.
Following the law, a code of conduct for content creators was published by the Ministry of Economy, outlining the rights and duties of influencers, as well as the laws to which they are subject.
The Definition of Influencer: Strict Framework and Clear Terms
Given the lack of consensus and clarity, the first step was taken: defining the term influencer.
Influencers are individuals who, in exchange for remuneration or benefits in kind, “leverage their notoriety with their audience to communicate” on the Internet and produce “content aimed at directly or indirectly promoting goods, services, or any cause”.
Brand ambassadors receiving products free of charge to give their opinion and share their feelings with their community are also covered by this definition.
“I ‘t is in the interest of the’ vast majority: those who behave responsibly, respect the rules, and do not deserve to have their image tarnished by a dishonest minority.” – Stéphane Vojetta, Member of Parliament.
From the beginning, at Trustt, we have always believed in the existence of responsible influence, a selective choice of content creators who are committed and mindful of their impact on their audience.
Because it is also our responsibility to make content creation more responsible, committed, and transparent.
The Activity of Influencer Agent: An Intermediary Who Does Not Escape Responsibility
Regarding the “influence a” gency or the “influencer a” gent activity, it “is the” intermediary that connects these content creators with brands.
A decree will define the threshold of remuneration or benefits in kind above which influencers, their agents, or advertisers must enter into written contracts.
The mandatory clauses of written contracts:
- The details of the assigned missions,
- The conditions of remuneration,
- The submission of content to French law when the target audience is in France.
Regarding liability in case of breach: it is joint and shared between the brand, the influencer, and their agent. Suffice it to say that it is now essential to be careful when selecting influencers for your marketing campaigns, and to build relationships based on trust and exemplarity.
Concerning influencers residing abroad outside of Europe (you’re thinking of Dubai? So are we!): they are obligated to designate a legal representative in the European Union and to subscribe to civil liability insurance within the EU from the moment their target audience is in France…
The Case of Child Commercial Influencers
The influence law provides that the rules on the work of minor YouTubers on video-sharing platforms (law of October 19, 2020) now extend to all online social platforms (Instagram, TikTok, Snapchat, etc.).
Also called “child commercial influencers”, they now benefit from the protection provided by the Labor Code. Parents must sign their contracts with brands and set aside a portion of their income, available when they reach majority.
But the law has not forgotten online platforms: they must mandatorily make available to users means (buttons, help, etc.) to report illicit content. YouTube, TikTok or Instagram: these social networks will then have to remove this content as quickly as possible.
Influence: Towards Clearer Regulations to Combat Abuses
It goes without saying that advertising regulations have not been sufficient to prevent scams and breaches of trust practiced by some influencers.
The new influence law has come to lay its foundation to remind that influencers are subject to compliance with the legal framework on advertising and promotion of goods and services, also known as the Evin law.
Thus, influencers are notably prohibited from promoting:
- Cosmetic surgery practices;
- Financial products and services (including cryptocurrencies or NFTs);
- Therapeutic abstention;
- Nicotine-based products;
- Subscriptions to sports advice or predictions.
Commercial content containing wild animals is prohibited, and advertising for gambling and games of chance is regulated (to protect minors), as well as that concerning enrollment in professional training via the CPF.
And What About Dropshipping? Influencers promoting products (often of poor quality), counterfeit or not delivered, will be held responsible towards buyers. And it was about time!
Better Transparency: Informed and Sensitized Users
Because social network users are becoming more numerous (and younger), controlling the reception of messages produced by content creators is impossible.
And the consequences should alarm us: development of eating disorders, use of over-the-counter medications without medical advice, feelings of body dissatisfaction in the face of “perfect” bodies.
For better information to their followers, influencers as defined by the law must clearly and visibly indicate the mention “advertisement” or “commercial collaboration” on the concerned content.
And to protect young users (but not only): photos and videos of retouched faces or bodies or those created by artificial intelligence must display the mention “retouched images” or “virtual images”.
In middle schools: students will be sensitized on the subject of sexist publications, risks of online scams, and tools available on platforms to report illicit content.
Controlling and Sanctioning Abuses on Social Networks: Yes, But How?
On the influencer side: in case of violation of the prohibitions or obligations provided, or if the content creator intentionally conceals the commercial collaboration of their content, they face up to 2 years of imprisonment and a €300,000 fine, as well as a ban on continuing their activity.
On the platform side: social networks must collaborate with the State in order to regulate the commercial influence sector and contribute to clear public information about the obligations of influence agencies, brands, and influencers.
Influence Law: A Necessary Step Forward, but Difficult to Apply?
This law has caused a small tidal wave in the world of influence: ‘outfit of the day’ posts will no longer be tolerated without mentioning that the bag, jacket, or jewelry was sent free of charge by the brand or an agency.
Are ‘skincare routines’ innocently posted in Instagram stories without any clarification that the brand sent an entire package to benefit from the influencer’s visibility now over? Is it forbidden to discreetly place (and without mention) a face cream received for free in a post?
A major step forward, which has made global news:
The #InfluencerLaw has a global impact.
— Stéphane Vojetta (@StephaneVojetta) June 16, 2023
All around the 🌎, media outlets are enviously highlighting that France 🇫🇷 is the first country to regulate commercial influence.
A law of parliamentary initiative which, I hope, will soon inspire legislators in 🇪🇺 and in… pic.twitter.com/gRzbXDeR6D
But several questions still arise: how is it possible, from a practical point of view, to place a ‘controller’ behind each content creator? Whether they have 1000 or 15,000 followers? How to ensure that all social media users receive clear and complete information about their rights and obligations?
Today, in light of the law, we can all potentially be influencers. A legal step forward, certainly, but one that raises questions… We’ll see if future decrees will be able to address the practical issues.
