The democratization of the internet has facilitated the creation and availability of content worldwide for all internet users. Relationships between different consumers have gradually become structured through relationship services—social networks—offering everyone the tools to create content and access other users’ published content.
Platforms such as Twitter, TikTok, Instagram, Snapchat, Twitch, and YouTube have fostered a diversification of content and its forms, as well as the emergence of new paid professions related to this content creation: influence and influencers.
As a reminder, influencers are professionals or individuals who offer content published within various social networks, distinguished by very large communities of subscribers or internet users. In this sense, they are considered “opinion leaders,” some of whose content may include promotional or advertising activities for products or services.
Influencers & Law: Professionals with Varied Activities
Influencer marketing is a major challenge for all professional influencers, serving as the primary financial lever for their business.
In this context, numerous commercial practices deemed unfair or misleading have gradually emerged—disguised or clandestine advertising, fake subscriber accounts, content plagiarism, illegal contests, etc.—resulting in platform sanctions and even legal convictions, particularly for counterfeiting or unfair competition.
In the dropshipping sector, for example, it is up to influencers and brand ambassadors to ensure compliance with mandatory consumer law disclosures: identification of the partner, non-incentivization of purchases by young audiences, honest and fair information on product characteristics, exclusion of the promotion of regulated or prohibited products, etc.
Partnerships & Influencer Sponsors: Specific Contracts & Precise Clauses
Providing an exhaustive list of all the clauses likely to appear in an influencer partnership contract appears difficult, given the diversity of influencer profiles, advertisers, and sponsors interested in their services, the types of requests and obligations undertaken, and their terms of application.
Drafting a contract dedicated to the relationship between the influencer and the sponsor/advertiser remains essential to protect the respective interests of each party and to ensure the effective delivery of services that can affect the image and reputation of a company, brand, product, or service.
The contracts drafted may therefore be subject to different legislation and legal codes, including the French Labor Code or civil rules relating to service contracts, depending on the individual’s status: This may involve activities similar to those of a model, actor, athlete, “online audiovisual content creator,” generic promotion, etc.
Law & influencers: specific and personalized promotional contracts
However, a number of distinct services can be identified that may be subject to separate or combined contracts: the one-off promotion of a marketing campaign, the commitment over a given period to publish an identifiable number of free (without any specific style or treatment) or predefined content, the creation of independent and critical content, participation in performances or events, trademark and image rights licensing, etc.
Contracts must include clauses relating to intellectual property, exclusivity, the duration of the partnership, remuneration, the products concerned, the coverage of expenses, etc.
The absence of contractual frameworks can also lead to the criminalization of certain publications. This is particularly the case when the provisions of the French Consumer Code are not respected, particularly the obligation to provide fair and sincere information, which may qualify the operation as a deceptive commercial practice.
Indeed, failure to make advertising clearly identifiable to the public when promoting on behalf of a brand or sponsor is a criminal offense, with penalties of up to two years’ imprisonment, a fine of 300,000 euros, or even percentages of the company’s turnover.
On Child Labor Influencers Read more
Influencers & Social Media: Publisher Responsibility
In France, the Law for Confidence in the Digital Economy (LCEN) reiterates the strict responsibility of influencers for the content they publish, whether or not it is created at the request of third parties.
Indeed, the latter is legally classified as an online content publisher and remains primarily responsible for its publications with regard to the various applicable regulations: press law, image rights and privacy, intellectual property and copyright, defamatory or offensive content, or content constituting other press offenses, etc.
The LCEN recalls on this point the themes which can limit the freedom of expression of influencers, in particular that the latter imply “respect for the dignity of the human person, the freedom and property of others, the pluralist nature of the expression of currents of thought and opinion, the safeguarding of public order, the needs of national defense, the requirements of public service, the technical constraints inherent in the means of communication or even the need, for audiovisual services, to develop audiovisual production”.
Influencers & Social Media: Content Moderation
Governed by contract, the liability of content creators can be mitigated or limited, but it appears very difficult to eliminate it strictly speaking.
Some social media and online content hosting platforms offer tools that facilitate interaction and participation among subscribers, particularly on Twitch and YouTube. The influencer, responsible for all posts on their channel, has a duty to ensure the moderation of content, including that published by a third party.
If they are not the direct author of the post, the influencer, through a so-called cascade of liability, will be co-responsible for their post unless they can prove that they were unaware of the content and removed it promptly, as defined in Article 6 of the LCEN:
“Natural or legal persons who provide, even free of charge, for the purpose of making available to the public through online public communication services, the storage of signals, writings, images, sounds or messages of any kind provided by recipients of these services cannot be held civilly liable for the activities or information stored at the request of a recipient of these services if they were not actually aware of their manifestly illicit nature or of facts and circumstances revealing this nature or if, from the moment they became aware of it, they acted promptly to remove this data or make access to it impossible.”.
Influencers & Social Media: Cyberbullying, Mob Harassment & Digital Raids
Numerous recent practices by influencers encouraging their communities to denigrate or troll people on social media or in real life have prompted legislators to create new specific criminal offenses. Some statements by influencers have been classified as cyberbullying or mass harassment, resulting in prison sentences and fines.
The first court decisions on this matter have been marked by surprising severity on the part of judges in protecting the privacy of victims of cyberbullying: Nadia Daam and Marvel Fitness cases
