The new Influencer marketing French law: from #LOL to #Advertising

This content originally appeared on NRF Connections.

Influence and content creation have revolutionized the approach to marketing. In the absence of specific regulations applicable to this new form of advertising, influence marketing has been - until now - solely governed by existing law, in particular advertising law and consumer law.

However, in view of the action of a minority of (major) influencers, it quickly became apparent that existing law was insufficient to deter certain prohibited practices. It is in this context that the tailor-made law of 9 June 2023 was passed, which aims to regulate commercial influence, and combat influencers wrongdoings on social networks.

Although not revolutionary, this law sets a unique legal framework for influence marketing and aims to combat certain prohibited practices and behaviors, in order to protect both influencers and at-risk consumers on social networks.

What does this law provide for?

• A legal definition of “influencers” and “influencer’s agents”
• A requirement for a written contract between influencers, their agents and advertisers, above a certain threshold of remuneration or benefits in kind (to be determined by decree);
• Specific measures to protect child influencers
• Strengthened obligations for online platforms
• Bans on certain types of advertising including cosmetic surgery and medicine, certain high-risk financial products and services, therapeutic abstinence, nicotine packs, subscriptions to sports advice or forecasts and advertising involving wild animals
• Specific rules on dropshipping
• Obligation to inform subscribers: "advertising", "commercial collaboration", "photoshopped images", "virtual images"
• Penalties: 2 years' imprisonment, €300,000 fine, permanent or temporary ban on exercising the profession of influencer
• Greater powers for the General Directorate for Fair Trading, Consumer Affairs and Fraud Control (DGCCRF) in terms of fines and formal notices issued against influencers.

However, the question remains as to the scope of enforcement of the law, in particular its territoriality which is not precisely defined. Will this law only apply to French citizens? Will it apply according to the target audience? Will it apply according to where the damage has occurred?

More importantly, will this new regulation effectively ensure an adaptable protection for the young, influenceable audience who are targeted by influence marketing? Only future sanctions will tell…

Though the law now needs to “live its life” in order to clarify some of its concepts, it is welcomed by most of the players of the marketing industry, and in particular, of the influence marketing industry. Our recent conversations with influence marketing agencies and specialists regarding the content of the law reinforces the feeling that a specific law, yet unrevolutionary, was not needed for most of the serious market players but that the misconducts from a minority of influencers has severely harmed the industry and public opinion and thus required the government to act proactively.

Fun fact - it is one of the only laws that was adopted unanimously by the French parliament, all parties agreeing to it. Needless to say, some topics are easier to agree on.