Law no. 2023-451 of June 9, 2023 aimed at regulating commercial influence and combating the abuses of influencers on social networks was published in the Journal Officiel on June 10.
New definitions
The law now defines influencers as “natural or legal persons who, for remuneration, communicate content to the public by electronic means with a view to promoting, directly or indirectly, goods, services or any cause whatsoever, engage in the activity of commercial influence by electronic means”, as well as the activity of influencer agent, which consists of “representing or putting in contact, for remuneration” persons engaging in the activity of commercial influence.
Certain activities prohibited or more tightly supervised, and in all cases an obligation of transparency
While influencers must already comply with existing legal provisions governing advertising practices for product placements, they must also refrain from any direct or indirect promotion of medicinal treatments, cosmetic surgery, alcoholic or nicotine-containing products, certain financial products and services (notably crypto-currencies), sports betting subscriptions or products involving wild animals. They will also have to comply with provisions governing the promotion of gambling.
In addition, to better inform subscribers and young users of social networks, influencers will have to indicate, in a clear, legible and identifiable manner, the terms “advertising” or “commercial collaboration” in the case of partnerships, and “retouched images” or “virtual images” on their photos and videos affected by the use of filters or artificial intelligence processes.
Greater responsibility for influencers to combat drop-shipping
In order to adapt to the dropshipping phenomenon, influencers will henceforth be fully liable to buyers, within the meaning of article 15 of the LCEN, for the products they sell on their social networks. They will therefore have to provide the buyer with the information stipulated in article L. 221-5 of the French Consumer Code, as well as the identity of the supplier, and ensure that the products are available and legal, in particular that they are not counterfeit.
More formal contracts, including for influencers based abroad
Influencers will have to formalize written contracts with their agents and advertisers, when the sums involved exceed a certain threshold, to be defined within an implementing decree. These contracts will have to include several mandatory clauses (concerning, for example, remuneration conditions, submission to French law, missions entrusted, etc.). The law also stipulates that the advertiser, its agent and the influencer will be “jointly and severally liable for any damage caused to third parties in the performance of the influencing contract between them”.
These obligations apply to all influencers targeting a French audience, including foreign-based influencers. The latter will be required to designate a legal or natural person within the European Union who will be criminally liable in the event of an infringement. The text also requires influencers operating outside the European Union or the European Economic Area to take out civil liability insurance in the Union.
As for the platforms hosting influencer content, they must allow Internet users to report any content that does not comply with the new provisions on commercial influence.
Greater powers for the DGCCRF
In addition to its supervisory role, the DGCCRF (Direction Générale de la Concurrence, de la Consommation et de la Répression des Fraudes) now has enhanced powers to impose injunctions, fines and formal notices against influencers. The DGCCRF has set up a 15-strong commercial influence unit.
In the event of infringement of the obligations laid down in this text, influencers risk up to 2 years’ imprisonment and a fine of 300,000 euros, and may be banned from exercising their profession.
They may also be banned, permanently or temporarily, “from exercising the professional or social activity in the exercise or on the occasion of the exercise of which the offence was committed”.
Publication of a guide to good conduct
In order to assist influencers in bringing their content and activities into compliance, the government has published a guide to good conduct. The sector is now awaiting the implementing decrees, which should provide details of the changes made for the activity of content creators.
Article by Véronique Dahan, Emilie de Vaucresson, Thomas Lepeytre and Romain Soiron.
