One year after its entry into force, the French law on commercial influence has been brought into line with European law.
On 9 June 2023, France became the first European country to adopt a law governing commercial influence[1]. Shortly afterwards, however, the European Commission pointed out that the legislation might conflict with European law, prompting France to amend its regulations in this area.
Since 2023, France has strengthened its legislation on commercial influence.
Until then, there was no specific legislation governing influence and content creation. Numerous abuses have motivated the French legislator to regulate the various practices of players in the sector.
It was in this context that the Act of 9 June 2023 No. 2023-451 ‘aimed at regulating commercial influence and combating abuses by influencers on social networks’ was adopted, focusing on 3 main areas:
- the creation of a legal definition of the status of influencer and their agent and the supervision of their activity;
- making influencers, advertisers and platforms liable;
- regulating certain forms of advertising on social networks and banning them in certain cases.
Repercussions of the law on commercial influence in Europe
The institutions of the European Union have also taken up this burning issue. In 2023, for example, the Commission launched an information platform for influencers, and initiated a number of investigations, in close collaboration with national authorities.
In this context, a Council of the European Union ‘Audiovisual and Media’ working group dedicated to this subject has been set up to update European regulations to take account of commercial influence, the conclusions of which could serve as a basis for concrete regulations.
More broadly, the Commission has already suggested that a comprehensive review of existing European consumer protection legislation should be introduced in the form of a regulation on digital fairness.
Conformity of the law on Commercial Influence with European law
While the European Union has stated that it encourages the development of policies and instruments aimed at regulating the practices of influencers, it does not wish this to be done at the expense of harmonizing national laws and existing European texts.
In August 2023, two months after the promulgation of the French law, the European Commission wrote to the French government to indicate that it considered that certain provisions of the law of 9 June 2023 could conflict with EU single market rules.
Draft order amending the law on commercial influence
In this context, the French government intends to clarify the Law of 9 June 2023, in particular with regard to European law, by means of an ordinance.
On 4 July this year, the European Commission was notified of a draft compliance ordinance[2] aimed at clarifying certain provisions of French legislation to make them compatible with European legislation.
The changes can be summarized as follows:
- Applicability of the law to influencers:
The definition of influencer remains unchanged, but the law specifies that it applies to influencers established in France or outside the European Economic Area (EEA). For influencers established within the EEA, a safeguard mechanism is provided for in order to put an end to an infringement or a serious and grave risk of infringement of public order, in particular concerning the protection of minors, public safety, consumer protection or public health (article 1).
- Flexibility in the transparency of commercial intentions:
The transparency requirements concerning commercial intent, such as commercial collaboration or advertising, have been made more flexible. The information must be adapted to the characteristics of the influencing activity and the format of the communication medium used (article 5).
- Flexibility in the criteria for mentioning content:
The criteria for indicating certain content, such as retouched images, virtual images and gambling, have been made more flexible. These references must be clear, legible and comprehensible on any medium used, rather than being identifiable on the image or video throughout the viewing period (articles 4 and 5).
- Decree on legal representation:
A decree is planned to define the terms of application concerning the legal representation on the territory of the European Union of influencers who are not established in a Member State of the European Union, the Swiss Confederation or the EEA, but who target an audience in France (article 9).
It remains to be seen whether these changes will be enough to convince the European institutions. However, we can be sure that the government’s representatives will use their influence in this area! To be continued…
[1] Act no. 2023-451 of 9 June 2023 ‘aimed at regulating commercial influence and combating abuses by influencers on social networks’ was adopted.
[2] Draft Order amending Law No 2023-451 of 9 June 2023 aimed at regulating commercial influence and combating abuses of influencers on social networks