INFLUENCERS – Analysis of the modifications of the bill on influencers voted on 30 March 2023 by the French national assembly

On 30 March, the National Assembly voted on the bill aimed at regulating commercial influence and fighting against the abuses of influencers on social networks.

Several amendments have been integrated compared to the initial proposal commented in one of our previous FOCUS IP.

The main modifications to be retained are the following :

– The legal definition of an influencer

The voted text no longer refers to a decree that would set a threshold of remuneration from which the qualification of influencer could be retained.

The definition retained is now the following:

“Natural or legal persons who mobilise their notoriety among their audience to communicate content to the public by electronic means with a view to promoting, directly or indirectly, goods, services or any cause whatsoever in return for an economic benefit or any advantage in kind are exercising the activity of commercial influence by electronic means.”

– Regulation of promotion for certain products and services

The scope of the sectors of activity concerned has been modified:

• Tobacco and vaping sector: it is now expressly mentioned that influencers must comply with the prohibition of promoting tobacco and vaping products in compliance with articles L.3512-4 and L.3513-4 of the Public Health Code.

Influencers are also reminded of their obligation to comply with the Evin Law regarding the promotion of alcoholic beverages. The general prohibition initially envisaged is therefore set aside.

• Health sector: in addition to the ban on the promotion of surgical procedures, the obligation to comply with the regulations on nutritional and health claims for foodstuffs has been added.

Above all, a much more general prohibition was added on “any direct or indirect promotion which undermines the protection of public health“.

The previous version of the Bill provided for a broader express prohibition, since it also covered pharmaceutical products such as medicines, contraceptives and foodstuffs intended for medical purposes.

• Gambling sector: promotion by influencers is now subject to two technical criteria: (i) the use of platforms offering the technical possibility to exclude underage users from the audience; (ii) the activation of this functionality.

A specific clause will also have to be inserted in contracts with operators whereby influencers certify that they are aware of the laws and regulations applying to commercial communications relating to gambling and undertake to comply with them.

• Sector of sweetened drinks or drinks with added salt or synthetic sweeteners or manufactured food products: influencers under the age of 16 are prohibited from promoting these products, as well as product placements in a programme targeting minors under 16.

In addition, the promotion will have to be combined with either (i) the form of presentation complementary to the nutritional declaration of the product, or (ii) health information.

Violation of the provisions concerning points 1, 2 and 3 would be punishable by 6 months’ imprisonment and a fine of EUR 300 000, instead of the 2 years’ imprisonment and EUR 30 000 fine initially provided for, unless the Consumer Code already provides for other penalties.

– Regulation of the activity of influencer agents

The new text reinforces the protection of intellectual property rights.

An amendment now explicitly states that the influencer agent must take “all necessary measures (…) to avoid situations of infringement of intellectual property rights“.

The contract between the influencer and his agent will also have to include a specific clause recalling the rights and obligations of on the parties in terms of intellectual property rights.

Finally, the contract will have to be drawn up in writing only when it concerns a sum exceeding an amount set by decree.

– The principle of joint liability between the advertiser and the influencer vis-à-vis injured third parties

The amendment aims to make the influencer more responsible and to encourage him to respect the rules relating to his activity, as well as to ensure better protection for the injured third party.