Influencers and Digital Advertising

Over the past decade, influence marketing has changed the way advertising is handled by companies. Influencers have entered the marketing world by leveraging massive followings on social media platforms, and brands have recognised the value of the new category of advertising professionals.

Even though the use of influencers has become a mainstay of advertising, French legislation has yet to meet this evolution, resulting in an often opaque legal framework.

The broad spread-out provisions applicable to influencers also generate difficulties in understanding influencers legal status, in particular when they are underage. This notably raises the question whether influencers are employees of the brands they advertise for—and therefore subject to labor law—or if they should be considered independent contractors, with their relationship with brands subject to commercial legislation.

Such opaque legal framework raises questions about the applicable regime, as well as the legal status of influencers. Even though there is no specific regime for influencers, recent legislation was adopted in order to protect children influencers (see our previous alert here).

Applicable Regimes
Influencer marketing is not specifically regulated under French law. Therefore, it remains governed by a combination of the frameworks applicable to both advertising and consumer protection. As a result, it may be difficult for influencers to fully grasp the rules to which their professional activity should abide without proper legal advice.

In regard to consumer protection, the French Digital Economy Act 2004 (Loi n° 2004-575 du 21 juin 2004 pour la confiance dans l’économie numérique) mandates that any advertising be distinctively identified as such. Considering that they effectively provide advertisement services, influencers are required to clearly mention that a product promotion, or any paid-for content included in their social communications, is an advertisement. Failure to properly disclose a commercial relationship between an influencer and a brand could be considered a deceptive commercial practice (Article L.121-3 of the French Consumer Code). Noncompliant influencing campaigns could therefore expose influencers to up to two years of imprisonment, a €300,000 fine, or even up to 10% of the average annual turnover or 50% of the expenses incurred by carrying out the advertising.

Status
Influencers perform work (services of influence) in return for remuneration, which can be either monetary or a benefit in kind.

French labor law requires the existence of a subordinate relationship to qualify an employer/employee relationship, which would result from the employer exercising direction, control, and sanction powers over the employee.

However, influencers usually are greatly independent regarding the modalities of the services they provide, and there is no control over their working hours. It can therefore be delicate to characterize such subordinate relationships and qualify influencers as “employees.” Nonetheless, the brand ultimately reserves the possibility to control the content created by the influencer before publication.

Such key elements demonstrate that qualifying the nature of the contractual relationship between an influencer and a brand requires a case-by-case analysis of both the nature of the services provided and the contractual relationship between the brand and the influencer.

Notwithstanding the qualification of an employer/employee relationship, French law has recently evolved to protect child influencers’ interests.

Protection of Child Influencers
The Loi n° 2020-1266 du 19 octobre 2020 visant à encadrer l’exploitation commerciale de l’image d’enfants de moins de seize ans sur les plateformes en ligne (the so-called Kidfluencer Act, see our alert here) regulates the activities of influencers under the age of 16.

Under this legislation, child influencers whose activity is considered “work” are protected under French labor law. Prior to the child performing any work activity on a social media platform, the child’s parents or legal representatives are required to petition for an authorization or approval before the French administration.

Children whose activity is not considered work are also protected, as a declaration must be made before the French administration if certain thresholds relating to video duration, number of videos, or revenue associated with published videos are exceeded.

In addition, the commercial exploitation of the images of children aged 16 and under on online platforms has been specifically regulated, e.g., with a portion of the income received by such minors to be deposited in a special state-handled account (Caisse des Dépôts et Consignations) and not available to them until they reach the age of majority or emancipation. As many influencers are minors, this legal provision ensures the minor influencers’ protection, either from their parents or from themselves as legally vulnerable persons.

Also, the General Data Protection Regulation (GDPR) provides additional protection relating to child personal data. Considering that underage influencers are oftentimes addressing a younger audience, such provisions may need to be taken into account, notably as these influencers become brands of their own or organize sweepstakes.

For most online services, Article 8 GDPR requires the consent of the parent or guardian in order to process a child’s personal data on the grounds of consent up to a certain age. Each member state determined an age threshold (between 13 and 16 years old) under which children cannot consent to the processing of their personal data on their own, requiring parental consent.

Controllers wishing to process personal data of children under the threshold age should therefore collect two consents: the child’s and the parent or legal guardian’s. In any case, any information addressed specifically to a child should be adapted to be easily accessible, using clear and plain language.

Finally, pursuant to Article 17 GDPR, controllers have the obligation to erase underage influencers’ personal data that was collected in relation to the offer of information society services (referred to in Article 8 GDPR) without undue delay.

To remedy the opacity of this fragmented general legal framework, the creation of specific legislation protecting influencers and regulating further the activities of minor influencers appears essential.

By Claude-Étienne Armingaud, Camille Scarparo and Inès Demmou