New French regulation on influencers’ activity
By Abril Neiman.
New technologies and social media have revolutionized the world of marketing and advertising. As a result, users are constantly exposed to a massive amount of commercial advertising. In particular, today’s advertisements do not necessarily come directly from the company, but through a new and growing figure: the influencers.
We may define an influencer as someone who directly or indirectly advertises goods, services, or causes by leveraging their ability to influence others, particularly consumers. As a result of this ability, influencers are hired to promote certain products or services in order to reach a mass audience.
In Argentina, there is no legal regulation on the activity of this figure. However, in an attempt to fill this legal loophole, the Self-Regulatory Body for Advertising -CONARP for its acronym in Spanish- has issued two relevant documents titled: “Influencers: Guide to Communication for Commercial Purposes” and “Communication for Commercial Purposes: Recommendations for Influencers”. At the same time, the National Senate presented a bill for discussion in the Chambers, concerning the legal regime for influencers in digital advertising services and electronic telecommunications networks, but it has lost its parliamentary status. As a result, there are no binding rules governing the commercial activity of influencers in Argentina so far.
Recently, law no. 2023-451[1] was passed in France to tackle fraud and abuse by influencers on social media. This regulation is innovative and exemplary for those countries that have not yet regulated this activity, such as our country. This text introduces the concept of “influencer” into the French legal system, along with its definition, and also regulates their hiring, legal representation, and civil liability towards consumers/users.
The most innovative aspect of this law is that, in view of the risks that this activity may entail for consumer behavior, the French law prohibits the promotion of certain products, services, or activities that may be harmful to the physical or mental health of individuals. The scope of the influencer’s activity is thus limited, excluding the possibility of advertising: surgical interventions, pharmaceutical products, financial investments and digital assets, among others.
The article prohibiting the promotion on social media of the above-mentioned products and services also provides for a fine of 300,000 euros, and up to 2 years’ imprisonment if non-compliance, in accordance with the French criminal legislation.
It should be noted that the need to regulate this activity would imply strengthening the protection of users and consumers when navigating social media. On that account, the prohibition of the promotion of pharmaceutical products and surgeries is crucial, as many influencers promote this type of products and services without having any real knowledge about them, and without considering the possible consequences for the consumer/user. In these cases, human health is at stake and explicit regulation is urgent.
Another aspect to be highlighted would be that the French legislation provides that the “influencer” is to be fully responsible towards the consumer, regardless of the fact that it is not them, but the supplier, who is, in fact, liable for the delivery of the product/service.
The responsibility is attributed to the influencer based on the obligation to inform. The influencer is the one who provides the consumer with information about the product, the identity of the supplier and ensures its legitimacy in the face of possible counterfeiting. They clearly play an important role – or at least an influential role, as their name suggests – and have a direct impact in consumers’ behavior. Consequently, this law holds the influencer responsible for the damage that the people may suffer as a result of the consumption of their advertising.
Following the example of France, and in view of the danger and detriment to users and consumers, especially related to their health, it is important that the countries pay attention to this problem and establish legal provisions to regulate the activity of influencers. This is in order to protect consumers and users in each country and in the world, because thanks to technological advances, influencers’ advertisements can reach consumers all over the world.
[1] French law no. 2023-451, which aims to regulate commercial influence and combat the excesses of influencers on social networks, was adopted on 9 June 2023 and published in the French Official Gazette on 10 June 2023.
For further information please contact: aneiman@ojambf.com
