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A recap of Me Chomiac de Sas’s latest training session at IXAD – the Northwest Regional Law School – on November 14th, which focused on the legal framework for influencer activity.
This training is part of an IXAD training cycle dedicated to digital law:
- The law of the metaverse and virtual reality took place on October 6th. Find the presentation of the training here.
- The law of video games and esports will take place on December 7th.
Influencer Law: Communication, Internet, Advertising & GDPR
The training provided allowed professionals in the sector to understand the legal issues related to influencer activity, which underwent significant changes in 2023. Following the introduction of several draft laws, a specific legal framework applicable to commercial influencers came into effect.
Behind the wide variety of influencer activities, a range of legal and regulatory provisions apply:
These include rules governing communication, particularly audiovisual communication, rules governing the internet and online public communication, the liability of platform hosts – especially social media platforms – and the editorial responsibility of influencers regarding published content, the organization of social networks and their access conditions for influencers, and regulations concerning the protection of personal data, including the recent GDPR – General Data Protection Regulation.
In addition to these legal areas, all the classic subjects related to business law, labor law, tax law, press law, intellectual property, or specific regulations depending on the products or services considered are also applicable.
Influencers: Sweepstakes, dropshipping, child influencers
Through a series of examples and practices observed in the sector, Me Chomiac de Sas’s training session analyzed the various legal issues that influencers may face:
- In criminal law, the new offenses of online raids and online mob harassment were discussed. The Marvel Fitnesse & Milla cases were among those addressed;
- In advertising law, the evolution of promotional methods used by influencers, particularly those subject to penalties under the Evin Law concerning the advertising of alcoholic products, was examined;
- In family law, the complex relationships between child influencers and their parents or legal guardians, producers, and organizers of digital content creation were explored, notably the cases of Daddy O Five, Neo & Swann, etc.
- In gambling law, many influencers offer online contests and lotteries through their platforms, the terms of which are strictly regulated by the Internal Security Code and overseen by the National Gaming Authority.
The discussion also highlighted the contemporary challenges related to the excesses observed on social media, primarily targeting influencers who are victims of so-called toxic practices.
In this context, and faced with the lack of mobilization from social media platforms, movements to report illegal behavior involving harassment or assault against female influencers have been denounced through hashtags such as #balancetonInfluenceur (expose your influencer) and #twitchmetoo.
Similarly, the major role of certain platforms in regulating and controlling content has allowed for a presentation of the key differences between social networks, notably Instagram vs. TikTok, Twitter vs. Snapchat, and OnlyFans vs. Mym.
Their obligations and responsibilities are currently undergoing significant reform within the European Union through the entry into force of the recent Digital Services Act.
It establishes a set of rules to hold digital platforms accountable and combat the dissemination of illegal or harmful content or illegal products: racist attacks, child pornography, disinformation, the sale of drugs or counterfeit goods, etc. This legislation replaces the so-called e-commerce directive of June 8, 2000, which had become outdated.
The Digital Services Act includes numerous measures to strengthen the fight against illegal content, promote online transparency, regulate targeted advertising to minors, and mitigate risks and respond to crises within platforms.
Influencers: a new legal framework in 2023
Following a series of scandals in the sector, including illegal dropshipping, promotion of illicit or regulated products or services, and even online fraud and exploitation of vulnerable individuals, legislators have identified abuses by industry professionals and established a legal framework outlining the applicable rules. In less than three months, no fewer than five bills have been introduced, targeting the regulation of influencer advertising, the prevention of illegal business practices, the fight against abuses, and the specific protection of child influencers.
Bill of November 15, 2022 – Commercial and advertising practices related to influence
Bill of December 15, 2022 – Strengthening the prevention of illegal commercial practices
Bill of December 27, 2022 – Combating influencer abuses on social media
Bill of January 19, 2023 – Respect for children’s image rights
Bill of January 31, 2023 – Combating scams and influencer abuses on social media
LThe status of child influencers had already been subject to legal frameworks initiated in 2020 to integrate the activity of child influencers into the provisions of the Labor Code relating to child labor. It thus aligns with the regulations applicable to child models, actors, athletes, fairground workers, and esports players.
The bill is currently in its second reading in the Senate.
It is part of a training course offered at the EFB – Paris Bar School in December 2023 on the topic of the exploitation of children’s images, following up on a publication in the LexisNexis – Family Law journal.
Find our various publications and presentations on this topic.
Contemporary regulations concerning influencers cover, on the one hand, the initial definition of commercial influence, as well as the rules in place regarding consumer information, dropshipping, the relationships between influencers, advertisers, and influence agents, and finally, the penalties related to illegal practices.
Formalized by Law No. 2023-451 of June 9, 2023, “Natural or legal persons who, for a fee, leverage their reputation with their audience to communicate electronically to the public content aimed at promoting, directly or indirectly, goods, services, or any cause whatsoever, are engaging in electronic commercial influence.”
Consumer information regarding commercial influence now includes conditions for limited, prohibited, or regulated advertising, particularly in the areas of cosmetic surgery and medicine, financial products and services, counterfeit goods, nicotine sachets, subscriptions to sports advice or predictions, advertising involving wild animals, the promotion of gambling and the protection of minors, and registrations for professional training courses (CPF account), specifying the financing methods, eligibility rules, and identification of the training provider.
Our firm has been practicing in the field of new technologies and digital law for ten years. We assist all professionals in the sector, including influencers, talent agencies, and more generally, creators and producers of audiovisual and digital content.
