The Influencer Contract

Today, companies use sponsorship operations to reach a targeted audience. Influencers have become one of the most effective means to achieve this, particularly through product placements. The brand can leverage the influencer’s popularity to promote its products or services. However, this intermediary’s activity is of a new kind, and its status and legal framework are difficult to define. What contract is applicable to the influencer?

What is an Influencer?

The influential person is more commonly known as an influencer. The latter refers to any intermediary between a company and the consumer community, responsible for creating a link between the brand and the consumer. Influencers have now become the new brand ambassadors. They allow brands to reach a targeted audience and consumers to obtain horizontal rather than just vertical information, an essential marker of trust. Horizontal information is the transmission of information between peers, such as B2B, while vertical information is the transmission of information between people not belonging to the same chain, such as B2C.

Today, influencers are present on social networks such as Instagram, Snapchat, YouTube… or blogs. The digital universe has become a real working tool.

What is Product Placement?

Historically, product placement was introduced within audiovisual programs, strictly regulated by law. The Superior Council of Audiovisual defines it as “any form of audiovisual commercial communication consisting of including a product, service or brand or referring to it, by inserting it into a program, in exchange for payment or other consideration”.

Before the emergence of social networks, artists, models, and athletes were the privileged few for brands to promote their products. Now, brands have opened up to new opinion leaders: influencers. As a result, the development of influence marketing is at the heart of brands’ communication strategies.

In this case, TrusttBeauty is a SaaS software dedicated to developing your influencer marketing: automate your product testing campaign in exchange for authentic reviews, reach a targeted audience, turn your customers into true ambassadors, and build an authentic, strong, and engaged community with TrusttBeauty!

What are the Different Forms of Partnerships Offered to Influencers?

As part of their collaboration with brands, influencers have various types of partnerships available.

• Most often, they benefit from an exclusive discount that they promote to their community in the form of a promotional code. This is usually an affiliate code;

• The influencer can also promote a contest, especially during holiday periods or special events;

• They can also choose a product from the brand based on their values, interests, and target audience, which they will test. They then share their opinion on social networks. This is a product test or advertising gift.

Is Product Placement Legal?

Product placement is legal provided that the advertising nature is clearly identified so as not to mislead the consumer through “hidden advertising”.

Furthermore, product placement should not promote a false claim, in which case the brand could be sanctioned for misleading commercial practices.

What Contract is Applicable to Influencers?

There are multiple contracts that can be applicable to influencers. The Professional Advertising Regulatory Authority (ARPP) distinguishes three types.

Influencer Contract

This contract refers to an agreement in which an individual will express themselves in a specific field and according to a style that allows their audience to identify them, in exchange for compensation. This notably includes YouTubers, Instagrammers, bloggers, vloggers, athletes…

Advertising Blogger Contract

This contract refers to an agreement aimed at promoting a product, service, or brand as part of the company’s marketing communication.

Sponsored Post Contract

This contract refers to an agreement for the production of a post, that is, an article posted on the blog by its author, published on behalf of the advertiser in exchange for compensation.

Is the influencer an employee?

The legislator has not provided a definition of the employment contract. In the absence of legal texts, judges consider that there is an employment contract when a “person undertakes to work for the account and under the direction of another person, in exchange for remuneration” (Soc., July 22, 1954, Bull. 1954, V, No. 576).

In other words, there is an employment contract when three cumulative conditions are met:

• A work performance;
• Remuneration;
• A subordination link.

The influencer performs a work service when they personally share sponsored content on their social networks, regularly, professionally, and on behalf of others to meet their needs.

This qualification, and more specifically, this connection to the employment relationship is crucial because it allows the influencer “to be protected by fundamental rights and labor law legislation such as” equal treatment, the right to strike, professional training…

In accordance with labor law, the influencer can benefit from the protective status of an employee, whenever their influencer contract stipulates that:

• The influencer will participate in a video shoot organized by the brand and that it will be broadcast on social networks. This is an artist contract within the meaning of Article L. 7121-3 of the Labor Code;

• The influencer will be responsible for either presenting to the public, directly or indirectly, through the reproduction of their image, a product, service, or advertising message, regardless of the medium used, or posing as a model, with or without subsequent use of their image. This is a model contract within the meaning of Article L. 7123-2 of the Labor Code.

Consequently, the influencer can benefit from the presumption of employee status of the model or artist contract in the presence of this type of clause. More generally, they will be protected by labor law in case of an employment contract binding the brand and the influencer. Otherwise, the influencer will fall under the self-employed regime since they will only be linked to the brand by a service contract.

The law and the influencer: a legal void?

For the moment, the law does not regulate the relationships between an influencer and a company in the context of a partnership. There are currently no real contractual obligations related to the profession of influencer, with the exception of common law. As a result, more and more lawyers are specializing in this area, due to the growing phenomenon of influencers.

However, the legislator has recently intervened to protect “child influencers”. The Law of October 19, 2020 aimed at regulating the commercial exploitation of the image of children under sixteen on online platforms protects the activity of “child influencers”, just like child models or performers.

In summary, prior to filming children or broadcasting their content, parents must obtain an individual authorization or approval from the administration. Additionally, parents have a new financial obligation, meaning that a portion of the income earned by their child will be placed in the Caisse des dépôts et consignations until they reach the age of majority. Finally, this law explicitly allows minors to benefit from a right to erasure, that is, the possibility of obtaining the deletion of their personal data.

New Development: Towards a Tightening of the Legal Regime for Influencers

On February 11, 2021, the British Advertising Standards Authority (ASA) announced a ban on influencers using filters during their social media product placements. Specifically, its use is prohibited on Snapchat, Instagram, and TikTok. These filters are considered misleading to consumers. The ASA is a British authority similar to the ARPP in France. Its main mission is to regulate advertising in order to protect consumers.

According to the ASA, the use of filters distorts reality and can be likened to misleading advertising. Indeed, some influencers use filters to promote the benefits of cosmetic products. However, the quality of their skin shown on social media is sometimes quite different in reality, behind the filters…

It is worth considering whether this new ban in the United Kingdom will be transposed to France, in which case the French beauty industry will have to adapt to this new regulation. By analogy, France has already adopted a similar approach regarding the retouching of photographs.

As a reminder, Health Minister Marisol Touraine was behind the decree n°2017-738 of May 4, 2017, relating to commercial photographs of models whose body appearance has been modified. This regulation requires brands to include the mention “retouched photograph” on retouched commercial photographs. Failure to comply with this obligation is punishable by a fine of 37,500 euros, which can be increased by 30% of the expenditure devoted to advertising (Article L. 2133-2 of the Public Health Code).