Article écrit par Pierre-Xavier Chomiac de Sas et Constance Mazard
Revue Lamy Droit de l’Immatériel (RLDI), avril 2016, n° 125
Youtubers, Streamers and Influencers: The Regulation of Online Advertising
Today, YouTube receives three million visits per day, boasts over a billion users, and is the third most used website in the world after Google and Facebook.
The various forms of online advertising, particularly on video hosting sites, raise numerous new legal issues concerning influencers, streamers, and YouTubers. Resolving these issues will require not only clear regulations but also, and perhaps more importantly, collaboration among the various internet stakeholders—professionals and users alike—to regulate the new internet framework through contracts and best practices.
Online advertising, especially on YouTube, TikTok, Twitch, and other platforms, has gradually adapted, moving from advertising around the video (banners or display ads) or through search engine optimization via sponsored links, to advertising integrated directly into the video playback before, after, or even within the video itself (pre-roll, post-roll, mid-roll). As a platform for audiovisual programs, YouTube has naturally been able to offer increasingly sophisticated advertising content, now extending to native advertising—advertising that seamlessly and discreetly integrates into the content being viewed by the user.
The promotional and advertising services offered by influencers and streamers have also gradually developed and diversified.
YouTubers, streamers, and influencers: monetizing their content through advertising
Currently, there are no definitive legal solutions, as the courts have not yet ruled on these practices. This new and ambiguous form of online advertising raises new legal issues, notably:
The separation between Television and the Internet. The current separation of legal regimes, based on the medium of publication rather than the content, seems to be reaching its limits in the face of audiences shifting from one medium to another. The concern for protecting the public has led to very strict regulations governing audiovisual content and its broadcast on television.
This same public, now on YouTube and other content hosting sites, should be eligible for similar protection.
The internet now seems to be meeting the criteria for being a mass medium: a means of communication offering, in particular, audiovisual content viewed by a vast audience of several million people worldwide.
The proper classification of online practices. The introduction and proliferation of advertising on the internet in recent years, along with the development of commercial and contractual practices to address legal shortcomings, necessitates an update to the legal framework governing online advertising.
While many videos undoubtedly constitute commercial practices, other formats may be closer to concepts such as sponsorship, patronage, simple product placement, or sponsored posts, each with its own constraints and advantages.tages.
YouTube’s responsibility. As the leading platform for hosting audiovisual content, this subsidiary of the giant Google refuses any responsibility for the content offered on its website, contesting any potential editorial policy. Its political and strategic choices only commit it to taking action upon the reporting of certain content. YouTube’s control over content, the tools it offers users—a color-coded system associated with generic themes (Language, Nudity, Sexual Situations, Violence, and Drug Use)—raise concerns about the effectiveness of its system.
And the only recommendation in the terms and conditions to follow the rules applicable in one’s country of residence is not particularly dissuasive.
And above all, the status of YouTubers. While their videos may appear similar, the companies created by YouTubers and streamers have diverse activities: film and television program producers and other recreational and leisure activities; advertising agency partners; and advertising agencies. Find our training courses on influencers and marketing.
This diversity in the classification of their professional activity necessarily influences their obligations and responsibilities: rules specific to the audiovisual sector, the legal framework governing advertising, press law, etc. It seems questionable, at the very least, that similar audiovisual content can be exempt from certain rules depending on the corporate purpose of the company producing it.
In the interest of transparency, in 2011, the legislature required pharmaceutical companies to declare all payments, services, or any equity stakes in a company, particularly those made to healthcare professionals. A similar system could be considered to encourage YouTubers to be more transparent about the content they publish.
