September 12, 2023
Article1 of this law defines the activity of commercial influence by electronic means as the activity carried out by natural or legal persons who, for a fee, use their reputation to address the public by electronic means in order to promote, directly or indirectly through content, goods, services or any cause whatsoever.
There is little originality here, as the law refers to applicable national and European provisions on the dissemination of advertising and promotion of goods and services via online public communication services. Article 3 specifies that influencers are subject to the same rules governing the advertising and promotion of goods and services as other players in this field who use other means of communication. In particular, the following regulations apply to this activity:
Finally, the provisions of article L.121-4 of the French Consumer Code also apply to this activity, making it an offence to declare or give the impression that the sale of a product or the provision of a service is lawful when it is not.
Article 4 of the law prohibits influencers from any direct or indirect promotion:
Violation of these prohibitions is punishable by 2 years' imprisonment and a fine of 300,000 euros, subject to specific penalties:
Nonetheless, the DGCCRF, in its role of reinforced control, has encouraged the issuing of injunctions to cease misleading commercial practices. For example, on August 10, the French fraud regulator nabbed several influencers for failing to specify the advertising nature of the publication and for "presenting as lawful the aesthetic medicine services of an unqualified service provider". The cease-and-desist order serves as a warning and reminder of the law, before more severe sanctions are imposed in the event of a repeat offence. These injunctions and sanctions are made public by the DGCCRF to inform consumers and encourage influencers to comply with the rules.
Article 5 of the law then imposes a number of information and transparency obligations on influencers in the context of their activities, particularly with regard to the content they disseminate:
Article 6 of the law also subjects influencers whose activity is limited solely to the marketing of products, and who do not take responsibility for the delivery of these products, to the provisions of Law no. 2004-575 of June 21, 2004 for confidence in the digital economy ("LCEN") and the Consumer Code concerning the seller's pre-contractual obligations, and the obligation to ensure that products are available and lawful, in particular that they are not counterfeit.
The law adds that they are automatically liable to the buyer, within the meaning of article 15 of the LCEN. This means that influencers do not have to be at fault for their liability to be engaged. He is responsible to the buyer for the proper performance of the obligations arising from the contract, whether these obligations are to be performed by himself or by other service providers. This responsibility does not prevent him from exercising his right of recourse against the latter.
Influencer agent activity is now also defined by law, as the activity of representing, for consideration, natural or legal persons carrying out commercial influence activity by electronic means with natural or legal persons and, where applicable, their agents, with the aim of promoting, for consideration, goods, services or any cause whatsoever.
Article 7 requires these agents or representatives to take all necessary measures to guarantee the defense of the interests of the persons they represent, to avoid situations of conflict of interest and, above all, to ensure that their activity complies with the law of June 9, 2023.
A new feature of the Act is Article 8, which specifies the contractual provisions governing agent contracts, now requiring a written contract specifying the precise purpose of the assignment and the consideration received.
It should be noted that a decree will specify the conditions under which this contractual obligation may be waived when the remuneration or benefit granted is below a certain amount, which will also be defined.
An important point now established by law: the advertiser, its representative, if applicable, the influencer and its agent or representative are jointly and severally liable for damage caused to third parties in the performance of the commercial influence contract between them.
Influencers who are not established on the territory of an EU member state must designate in writing a natural or legal person to ensure a form of legal representation on EU territory. In particular, this person will be responsible for guaranteeing the compliance of contracts whose purpose or effect is to implement a commercial influence activity by electronic means, aimed in particular at a public established on French territory, and for responding, in addition to or in place of the influencer, to all requests from the competent administrative or judicial authorities for compliance with the law of June 9, 2023.
The latter will have to take out civil liability insurance to cover the financial consequences of its professional civil liability, when this activity is aimed, even incidentally, at a public established on French territory.
Finally, it should be remembered that, in addition to the provisions of the Law of June 9, 2023, healthcare professionals involved in influencing activities are still subject to the provisions of :
In this context, the Conseil national de l'ordre des médecins ("CNOM") recently drew attention to the subject of physician influencers in its report on the anti-gift system, pointing out that such services may be contrary to the provisions of the code of medical ethics relating to independence and professional dignity.
