What the law will change for influencers

Regulate this new “Far West”. The bill on influencers which has just been ped in the Senate, after the National embly, seeks to avoid the highly publicized excesses of this universe.

As Amel Gacquerre (Centrist Union), the rapporteur for the text in the Senate, recalls, “many things were already pre-existing laws, it was however necessary to strengthen the framework and show pedagogy”. The text, which is at the end of its legislative journey – before a joint joint committee, which should only modify it marginally – targets some 150,000 influencers, whether they have a few dozen or millions of subscribers.

A clear banner indicating “advertit”

First, the text defines what an influencer is: “The natural or legal persons who, for a fee, communicate to the public by electronic means content aimed at promoting, directly or indirectly, goods, services or any cause engage in the business influence activity electronically. »

The main visible change undoubtedly relates to the mention “advertising” which must be affixed, throughout the duration of a promotional sequence. “In the past, there was an explicit obligation to say that it was a partnership. But now it will be clearly written, summarizes Mohamed Mansouri, deputy director of the Professional Advertising Regulatory Authority (ARPP). And this applies as soon as the influencer is paid or even if he receives a product or service that he promotes for free. We risk losing spontaneity. »

This provision makes the Public Relations Council Union (SCRP) scream, for which the text may also concern journalists (who would test a car, a beauty product, for example) or even elected officials who are invited for free… The argument is however, swept aside by the Senate, ensuring that the law only applies to influencers.

At the same time, the law obliges you to mention whether an image is retouched (thinned silhouette, etc.) or whether it is produced by artificial intelligence.

Haro on cosmetic surgery, theutic abstention…

The bill of deputies Arthur Delaporte and Stéphane Vojetta had already introduced several prohibitions, such as for the promotion of cosmetic surgery. The Senate added nicotine sachets, the promotion of theutic abstention (herbal teas rather than , for example) but also – and this is broader – the promotion of acts or that harm public health (such as diverted for weight loss purposes).

On the aspect of food and alcohol, the senators do not increase the constraints, despite certain amendments. The Evin law on alcohol must however be respected.

Finally, more anecdotally, the upper house added a ban on performing on social networks with non-domestic animals.

No Forex, but some authorized cryptocurrency providers

At the same time, the legislative prohibits the promotion of subscriptions to sports predictions – while former athletes, in particular, offered paid advice. On the thorny issue of cryptocurrencies, the Senate was less restrictive than the embly in authorizing advertising for service providers registered by the AMF. “The influencers had threatened to move to Luxembourg,” notes a specialist.

On the other hand, it is forbidden to advertise on financial instruments such as Forex, CFDs, etc. As for gambling, they must be reserved for an adult public.

The tougher penalties

In the event of a breach, the penalties have been stiffened: two years’ imprisonment and a fine of 300,000 euros, if the advertising bans are not respected or if an influencer conceals his true commercial intention. “We feel a strong determination of the government and parliamentarians to avoid excesses. The whole question will be whether significant sanctions will be imposed in the coming months or whether the law will just be an announcement effect, ”notes Yaël Cohen-Hadria, lawyer at EY.

Above all, the law provides for joint liability of brands and influencers. “This leads to disempowering influencers,” judge Sandrine Cormary, president of the SCRP. “We regret that there are no obligations on the platforms themselves,” adds Carine Fernandez, president of the Union of Influencers and Content Creators.

As for influencers based in Dubai – or elsewhere -, regularly singled out in recent months, they will have to appoint a legal representative in the European Union.