With a view to ensuring the compatibility of the law of June 9, 2023 aimed at regulating commercial influence and combating the abuses of influencers on social networks (Loi Influenceurs) with the European legal framework, notably in response to observations made by the European Commission, law no. 2024-364 of April 22, 2024 (Loi DDADUE 4) had repealed several provisions, namely:
- article 10 on hosting service providers (web hosts, online platforms, etc.) ;
- article 11 on online platform providers (marketplaces, social networks, content-sharing platforms, etc.);
- article 12 on intermediary service providers (access providers, cloud services, browsers and hosting services);
- article 15 on platform commitment protocols;
- article 18 on the entry into force of these requirements.
The DDADUE Act also empowered the government to amend the Influencers Act by order, with a view to clarifying certain provisions of French legislation to make them compatible with European texts.
During the summer, we informed you that a draft compliance order had been notified to the European Commission. The final version of this order has just been published in the Journal Officiel of November 7, 2024.
This order essentially adapts the prohibitions on online promotion in the healthcare sector, providing a more precise legal framework in this area.
Article 4 (I and II) of the Influencers Act has been amended to specify the following points:
- Article 4.I: The prohibition on promoting, directly or indirectly, aesthetic acts, procedures, techniques or methods now applies to those “likely to present risks to people’s health”. This is a more flexible approach, allowing the promotion of aesthetic procedures that do not present such a risk.
- Article 4.II: The ban on direct or indirect promotion of products, procedures, processes, techniques and methods presented as comparable, preferable or substitutable to therapeutic procedures, protocols or prescriptions now applies to “non-therapeutic” procedures. This clarification targets promotion linked to therapeutic abstention or pseudo-treatments, in line with the fight against so-called non-conventional medicines and sectarian aberrations.
In other respects, the order :
- clarify the wording of the penalties applicable to the various promotional bans, bringing them into line with those laid down for misleading commercial practices, in accordance with article L. 132-2 of the French Consumer Code. These penalties include up to 5 years’ imprisonment and a €750,000 fine, possibly accompanied by a ban on professional activity;
- make consumer information on retouched images and virtual images more flexible, given the rapid evolution of technologies and legal standards (notably the European regulation on artificial intelligence of June 13, 2024). Information indicating that an image has been retouched or produced by artificial intelligence must remain clear, legible and understandable (Article 5 of the Influenceurs law). However, they may now be replaced by equivalent wording, adapted to the specificities of the influencing activity and the format of the communication medium, thus offering a degree of flexibility under the control of the competent authorities.
- respect the country-of-origin principle (2010 Audiovisual Media Services Directive and E-Commerce Directive), while reiterating the exceptions to this rule;
- bring provisions on the display of commercial intent (2005 Unfair Commercial Practices Directive) into line with European law. The new article 5-2 of the Influencers Act stipulates that failure to indicate in a clear, legible and comprehensible manner the commercial intention pursued by an influencer constitutes a misleading commercial omission, unless this intention is obvious from the context, with mentions such as “advertising” or “commercial partnership” no longer being a strict obligation as they were previously.
- adjust the wording of article 9 of the law to specify that it applies to influencers residing abroad targeting an audience in France (for the appointment of a legal representative in the EU and the subscription of civil insurance in the EU).
In accordance with the DDADUE law, a ratification bill will be submitted to Parliament within the next three months, so that it can take on the force of law.
Lastly, the order must give rise to the publication of decrees under articles 5-1 and 9-I, as well as, in principle, the decrees awaited since the Influenceurs law. These include the decree setting the threshold above which a written contract between agency and influencer becomes mandatory, which is still pending.
All these clarifications could soon lead to a review of industry practices and the drafting of contracts between influencers and advertisers or their agents.
To be continued!