The Influence Act 2023-451 of 9 June 2023, recently amended by Order 2024-978 of 6 November 2024, provides a framework for the activities of influencers and their relationships with their agents and advertisers, against a backdrop of strong growth in influencer partnerships.
What the law provides for :
Ξ A structured legal framework with a status and legal definition for influencers1 and their agents. Note that there are specific rules for influencers under the age of 162 !
Influencers targeting the French public from abroad are also affected by these regulations and must appoint a legal representative within the European Union to ensure the legal compliance of their activity.
Ξ Bans and restrictions on the promotion of certain products and services :
• A ban on the promotion of certain products such as nicotine products, risky financial products such as crypto-currencies, cosmetic surgery, and subscriptions to sports advice or predictions;
• Strict supervision of promotional activities, including gambling;
Ξ Increased transparency requirements for content disseminated by influencers :
• Any paid collaboration must be clearly indicated with the words “advertising” or “commercial collaboration” on content sponsored by commercial partners;
• the words “retouched image” must appear on content representing faces and silhouettes modified by image processing tools (filters) and the words “virtual image” must appear on the same content modified by artificial intelligence tools;
Ξ Mandatory written contracts between influencers, agents and advertisers : these contracts must include clauses detailing the tasks, remuneration and legal obligations of the parties. Pending publication of the decree setting a possible exemption threshold, they remain mandatory for any collaboration, regardless of the amount of remuneration or the size of the community;
Ξ Joint and several liability for influencers, their agents and advertisers J in the event of breaches or damage caused to consumers or third parties;
Ξ Substantial penalties3 : in the event of breaches of the rules, influencers and their partners are liable, in addition to being ordered to comply, to heavy penalties and fines (up to 5 years' imprisonment and a fine of €750,000 for misleading commercial practices), and additional penalties of temporary disqualification in certain situations4.
Points to watch regarding partnership contracts with influencers:
Partnership contracts with influencers provide a framework for their independent service of creating and publishing sponsored content for an advertiser, without any subordinate relationship. Influencers must have creative freedom, failing which their contract could be requalified asan employment contract, entailing social and economic obligations for the advertiser.
Presumptions of employment may apply if the influencer:
- Lends his or her image only, in which case he or she can be treated as a model;
- Plays a scripted role under the direction of the advertiser, in which case he or she is considered a performer.
To avoid this reclassification, the advertiser is advised to guarantee the influencer's independence by:
- Preserving their creative freedom in producing their content using their own resources;
- Providing only “indicative” marketing briefs, without imposing a script or detailed staging or overly precise guidelines;
- Limiting its control to the legal conformity of the content;
- Clearly defining the service expected: the design and distribution of content featuring a product according to the influencer's editorial line and style.
A recent ruling by the Paris Court of Appeal on 23 February 2024 (RG n°23/10389) reiterated the absence of any presumption that the influencer is an employee, provided that the aforementioned conditions are met.
Within this strict regulatory framework, it is essential to formalise each collaboration with an influencer by means of a contract drawn up by a lawyer in order to :
- Secure your partnerships by ensuring that they comply with the latest legal requirements,
- Draw up contracts tailored to the relationship between influencers, agents and advertisers
- Anticipate risks and make the parties aware of the precautions to take in their communication campaigns.
Notes :
- Natural or legal persons who, for consideration, use their reputation among their audience to communicate content to the public by electronic means for the purpose of promoting, directly or indirectly, goods, services or any cause whatsoever”.
- Law no. 2020-1266 of 19 October 2020 aimed at regulating the commercial use of images of children under the age of 16 on online platforms
- Article L. 132-2 Consumer Code
- Article L. 131-27 of the Criminal Code
