This growing trend has, of course, resulted in a surge in deceptive and unlawful online marketing practices, prompting several lawmakers to seek to regulate social media influencers’ activities. At present, these activities are specifically addressed only by “soft law” – more precisely by the Influencer Marketing Ethics Charter adopted by the French advertising regulator (Autorité de régulation professionnelle de la publicité, or ARPP).
The first bill addressing marketing and advertising practices in the online influencer market was submitted to the National Assembly by its member Aurélien Taché on November 15, 2022, and provides a general legal framework for social media influencers’ activities.
A second bill was introduced on December 15, 2022, which aims to strengthen the prevention of and fight against unlawful marketing practices in the online influencer market by enhancing online fraud prevention and consumer protection enforcement resources.
A last bill was tabled by Arthur Delaporte on December 27, 2022, which aims to rein in social media influencers by prohibiting certain product placement deals for public health and policy reasons.
Two of the three bills provide a legal definition of the term “influencer”. The first bill defines it as an individual or legal entity that maintains a private or professional online presence to share, even if only occasionally, content expressing their point of view or providing advice that may influence consumer habits.
The third bill contains a similar definition, i.e., that “influencer” means “any individual or legal entity that actively engages, directly or indirectly, on social media, in the promotion of products, activities or services in exchange for compensation, including in the form of in-kind benefits, and that is able, due to their status, position or media exposure, to reach an audience that may influence mass consumption.”
Both definitions reflect the same notion that an influencer is a person with a social media presence who may influence their community’s purchasing decisions.
The first bill also defines an influencer agent as a person who, for a fee, acts on behalf of one or more influencers to arrange placements and represent their business interests.
If the bill is passed unchanged, influencer agents will be required to enter into a written “influencer representation agreement” with each influencer they represent, which must contain certain mandatory provisions establishing, in particular, its specific purpose, the services to be provided, the agent’s periodic performance reporting obligations, the terms of the agent’s compensation, as well as the duration of the contract and how it can be terminated. Any violation of these requirements subjects the agent to imprisonment up to 6 months and a fine up to 75,000 euros.
Similarly, the first bill requires that an agreement be entered into between the influencer and the brand seeking to use their services to promote products on social media platforms accessible to the influencer or their audience in France. Failure to enter into such an agreement subjects the influencer to imprisonment up to 6 months and a fine up to 75,000 euros.
The agreement with the brand using the influencer’s services must also contain several mandatory provisions, including information on the parties and the terms on which content is designed and produced. Moreover, the influencer may only produce advertising content that is lawful under French law and complies with applicable advertising and marketing regulations. The bill also requires companies not located in France to appoint a registered agent in France before entering into an agreement with an influencer who creates content accessible in France.
In addition, influencers are required to state in clear and unambiguous language if their posts are sponsored, so that their audience is properly informed of the advertising nature of their content.
These obligations are supplemented by the third bill, which prohibits influencers from promoting pharmaceutical products and medical devices, as well as high-risk financial products and investments. Influencers will thus be banned from promoting training courses or sports betting, gambling or gaming subscriptions, unless they display a message informing their audience that this content is reserved for persons of legal age.
Finally, influencers will be required to clearly state if the products they advertise were sourced directly or indirectly through dropshipping. If the influencer acts as an intermediary for the actual supplier of the product, they will need to make sure that the product or service exists and that the initial vendor has complied with any applicable terms and conditions of sale.
On December 9, 2022, the French Ministry of Economy held a roundtable on this important topic of influence marketing. In late January 2023, France’s Economy Minister Bruno Le Maire announced that an online public consultation on the subject had been launched on make.org on January 9, so that French citizens could express their opinion on the regulation of influencer activities, signaling that legislation will actually be enacted to address this issue.
More on this as it develops.
