Image generated by DALL E 3 Microsoft Version

Background and Origins

On June 9, 2023, France enacted Law No. 2023-451, a pioneering piece of legislation aimed at regulating the commercial practices of influencers and protecting social media users. This law represents a significant step in regulating commercial influence and combating the abuses by influencers on various digital platforms.

Definitions and Objectives

In recent years, the sector of commercial influence has seen exponential growth but also significant deviations, ranging from the promotion of dangerous products to deceptive commercial practices. The Directorate General for Competition, Consumer Affairs, and Fraud Prevention (DGCCRF) conducted several investigations revealing increasing deceptive commercial practices. Simultaneously, the Professional Advertising Regulatory Authority (ARPP) had already established good practice rules and created an Observatory for Responsible Influence in 2019. However, these measures proved insufficient, prompting legislators to intervene more rigorously to regulate commercial influence and combat its abuses.

This new legislation is noteworthy for its role in regulating concepts increasingly integrated into our daily lives. Article 1 of the law precisely defines the term “influencer” as follows: “Individuals or legal entities who, for a fee, use their notoriety with their audience to communicate electronically to the public content aimed at directly or indirectly promoting goods, services, or a cause engage in the activity of commercial influence”. Additionally, the activity of influencer agents is now regulated by Article 7, which defines them as intermediaries representing influencers or facilitating their relations with advertisers while ensuring the compliance of their activities with the regulations in force.

In France, where the number of influencers is estimated at around 150,000, the behaviours of some have highlighted the need for stringent regulation to protect consumers, especially the younger one, who are highly susceptible to these new forms of advertising. With this context, the law mandates that platforms hosting influencer content identify and remove illegal materials while ensuring the transparency of commercial posts.

Influencers must now establish written contracts with advertisers, explicitly specifying the terms of their collaboration to ensure clarity and protection. Moreover, the law requires increased transparency: any publication must clearly indicate whether it is an “advertisement” or a “commercial collaboration” to avoid any confusion among consumers, in accordance with Article L. 121-3 of the Consumer Code.

Additionally, this legislation continues the efforts of the October 29, 2020, law by enhancing the protection of all sector actors, including minor influencers. Dedicated measures aim to secure the activity of child influencers on all digital platforms such as Instagram, Snapchat, TikTok, and extend the provisions initially provided for minor YouTubers by the October 19, 2020, law. Thus, these young influencers now benefit from the protections of the Labor Code. Their parents or legal guardians are required to sign contracts with advertisers, and a portion of the income generated is reserved for their future in the form of a nest egg.

Violations of these rules can result in severe penalties, including imprisonment of up to two years and fines of up to 300,000 euros. The law also establishes joint liability between the influencer, the advertiser, and their agent, ensuring that victims of abusive commercial practices can obtain effective redress.

Assessment After Several Months of Implementation of French Law No. 2023-451

Since its implementation, French Law No. 2023-451 has resulted in numerous sanctions against influencers for deceptive commercial practices. In response, online platforms have enhanced their monitoring policies to align with the new legislative standards.

Nevertheless, this law has encountered criticism from many content creators, who view it as an overly stringent government intervention. They contend that the swift enactment of this legislation may stifle creativity and innovation within the influencer marketing industry.

In response to these criticisms, a code of conduct for influencers has been developed. Although useful, this guide does not fully meet the legal requirements of Law No. 2023-451 and does not have the same legal standing as the legislation itself. However, it plays an important educational role by raising awareness among influencers about transparency and consumer protection issues. It also provides detailed explanations and practical tools, such as contract templates and compliance checklists.

In addition, the European Commission has expressed reservations about this law, suggesting that it may conflict with the Digital Services Act (DSA) and that it did not follow the notification procedure required by the Commission. As a result, the DDADUE law was promulgated on 22 April 2024 with the aim of revising the basic articles of the influencer legislation. This reform aims to align French legislation with European standards, including the E-Commerce Directive and the DSA, in order to ensure consistent regulation within the European Union.

Conclusion

Law no. 2023-451 represents a major step forward in the regulation of the commercial influence sector in France. While criticisms remain, the need to protect consumers and ensure greater transparency in the practices of influencers justifies these stringent measures. Future adjustments, in particular through the DDADUE law, will better harmonise French regulation with European standards and ensure uniform consumer protection across the European Union. Despite the criticism, the need to protect consumers and promote transparency in influencers’ advertising practices justifies the adoption of strict measures. Nevertheless, this regulation raises questions about its compliance with European directives, particularly with regard to freedom of expression and digital innovation.