Influencers, also known as content publishers, are groups of individuals promoting a brand’s products on social networks. Their aim: to convince you to buy. Some don’t tell consumers that they receive gifts or commissions for every sale they make. Is this legal? Do influencers have any obligations towards their followers and brands? Is there a law governing the i nfluence marketing ? Are influencers liable if there’s a problem with an order? Find out here.
What is the Loi Influence?
A new law came into force in France on June 9, 2023. This is LOI n° 2023-451, also known as the Influence Law. This law concerns influence marketing. It applies not only to influencers, but also to brands and social networks.
This law aims to “regulate commercial influence and combat the abuses of influencers on social networks”. Indeed, some influencers do not always disclose the commercial nature of their actions (gifts, coupons, commissions) to consumers. They may also remain vague about their identity, which can be detrimental to brands.
This is why they must now follow new compliance guidelines to ensure transparency and integrity in their business practices.
Mandatory transparency
Influencers must clearly and transparently specify their business partnerships or the products they promote on social networks. Specific tags should be used to specify sponsored publications. This way, consumers know what they’re buying.
They are also required to inform consumers of their collaboration with a brand or professional. Their subscribers need to know that they are being paid to promote the products presented. All commercial content must be marked “advertising” or “commercial collaboration”.
Of course, the influencer can choose other means:
- In a video: its partnership must be indicated in its description and the first three hashtags.
- Via integrated social media functions or links.
Obligations to their audiences
The information shared with consumers is also governed by law. To avoid communicating false information to their audience, influencers are required to verify the accuracy of such information. Misleading information is punishable by a fine of up to 300,000 euros. They may even be banned from exercising their activity.
Influencers must follow strict rules when it comes to their audience, particularly with regard to the messages they transmit. To avoid any negative impact on the well-being of vulnerable audiences, especially minors, influencers must avoid publishing content that is inappropriate or incites excessive consumption.
A contract with brands and advertisers
Brands also have obligations to ensure that influencers are compliant. All partnerships must be put in writing. A contract commits content creators and brands. The amount of commissions must be specified. The format of the influencer contract is available online.
Advertisers must verify the influencer’s domicile. The contract must be made within the European Union. If the content publisher is located outside the EU, a legal entity or natural person must legally represent the influencer on European territory. It will be up to this person, on behalf of the influencer, to respond to requests from judicial and administrative authorities.
Do you work with an influencer outside the EU, Spain or the Swiss Confederation? Make sure the influencer is registered with a civil insurance company. The insurer must be based in the EU.
Platform liability
Social networks also have their share of responsibility, and not the least. Instagram, Facebook, YouTube… Social media must implement various measures in order to :
- Ensure that influencer publications comply with the law
- Report any abuse or abnormal behavior
- Remove illegal content.
Social media that fail to comply with these obligations may also be subject to fines or severe penalties.
What are the prohibitions?
To protect human dignity, French law imposes restrictions on the products that can be promoted. Also, to avoid offending public sensitivity or devaluing an individual (physical, religious or radical criteria), influencers are not authorized to promote products related to :
- To medicine and cosmetic surgery
- Crypto-currencies and financial services
- Gambling
- With nicotine, such as electronic cigarettes or certain heated tobacco devices
- Subscriptions or sports predictions.
These restrictions are designed to stop misleading commercial manipulations and to protect minors in particular.
Legal protection for influencers
The Influence Act also protects influencers, particularly with regard to their partnerships. Content publishers do not oblige consumers to buy. What’s more, consumers are generally redirected to the brand’s site or page on social networks. It is on this site or page that the subscription to a service or the purchasing process can be finalized.
This means that if there is a problem with the product, order or delivery, the influencer is not directly responsible. In the event of a failed delivery or defective product, the consumer must contact the seller directly.
Consumers can nevertheless take legal action against influencers for misleading or unfair commercial practices. This applies in every country of the European Union. On the other hand, if the influencer sets up a company and promotes his or her own products, it is the company that assumes responsibility for any associated problems.
To avoid getting into tricky legal situations, the influencer must :
- Specify supplier identity
- Guarantee product availability
- Certify that the product is not counterfeit.
The Influence Act represents a significant step forward in the protection of consumers, social network users and brands. By promoting transparency, this legislation puts the spotlight on ethical and responsible players in the influencer marketing field.
