New laws for influencers: this is how France gets the first regulation of the sector worldwide

On June 2nd the French parliament approved the draft law governing the online promotional activities of influencers, recently accused of not having complied with the criteria of advertising transparency and image related to their content.

The text of the law, which came into force on June 9^th, defines influencers “natural or moral persons, who, by charging themselves, use their reputation with their public to promote goods and services online”. Already by definition it is clear that the notoriety of a character in the choices of consumers is fundamental, especially through major social networks: Instagram and Facebook. The law was passed unanimously and represents the first regulation in Europe and in the world that tries to regulate a scenario that over the years has become a proper “Far West”.

With the law, influencers are considered real legal entities and will answer for their rights and duties before the law (in this case the French one), unlike before when they were subjected to the inappropriate rules, particularly considering the changing and unpredictable context of social media. Previously, there was already a French rule to indicate when a content posted was associated with a sponsorship or not, but the latter was not sufficient to prevent the continuous fraud and abuse.

And so, what are the new rules that influencers will have to follow?

• Prohibition of promotion of certain goods and services

In addition to the ban on the promotion of alcohol content already sanctioned by the Evin law (dating back to 1991 and applied to social media only last May), will be added a ban on sponsoring any type of product containing nicotine.

As regards the medical field, the advertising of some practices such as cosmetic surgery or therapeutic abstention will be prohibited.

The list also includes gambling and sports betting. Allowed only in those platforms where only adult users will access the content.

In addition, the law aims to protect users from the potential risks of drop shipping products: the practice of selling online through virtual stores, a product not physically owned by the seller within the warehouse. Very often these products are sold at a higher price than the one established by the market (because of commissions) and if promoted in a misleading way, after receiving the amount from the consumer, these platforms just disappear, leaving the consumer victim of a scam. As a result, the principle of joint and several liability between advertiser, influencer and his agent has been inserted and will therefore see the influencers involved in the responsibility of promotion towards the buyers of the products they sponsor.

• Quoting photo editing for advertising purposes

It has become imperative to indicate which content posted (photos, videos, stories) have been modified with filters or photo retouches for advertising purposes. A measure designed to combat deceitful advertising, which can lead users to believe in a distorted reality, very different from the real one.

This limitation has been designed especially for young people, the most vulnerable users, and those who can most easily experience lack of self-esteem and depression because of social content displayed.

• Liability insurance for influencers abroad

The law will oblige influencers working outside the European Union, Switzerland, or the European Economic Area to take out liability insurance within the Union, in order to establish a fund to compensate for any damage to consumer users. This is because many influencers in the EU have decided to work in countries where tax rules are more advantageous (particularly towards the UAE).

It is said that rules are meant to be broken and so, what happens if influencers go against their fulfilment?

Influencers who do not comply with advertising regulations can risk up to two years of imprisonment and a fine of 300 thousand euros. The DGCCRF (the French fraud regulator), since the passing of the law, has already issued sanctions against six influencers for misleading business practices. Causes include false advertising for sports betting advisory services, unspecified partnerships, and promotion of hyaluronic acid injections. In addition, the influencers concerned will be obliged to publish on their Instagram account a notice from the French authority in writing: “DGCCRF agents have initiated an administrative injunction”, and the post will need to be highlighted in their profile for a month.

From the perspective of an influencer, who lives by social work, those fines and penalties are very heavy, not only because a significant economic impact, but also in terms of impacts on one’s image with the possibility of losing credibility. France has taken its first step in a context full of pitfalls like that of social media. And so, who knows if other countries in the footsteps of this latter will begin to work to protect and defend users from the mystification of influencers’ universe.

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