Influence campaigns: what legal framework?

💥 Influence: Instagram, Tiktok, Twitch… From government awareness campaigns to promoting the biggest luxury brands, creators of content - Youtubers, Instagramers, Streamers, Twittos, etc. - have become essential personalities of communication strategies companies and institutions. From the status of simple user to that of icon of platforms, influencers are now true trendsetters. They entertain, inform, alert, recommend and / or denounce. If, within the meaning of law, its community is not considered as a clientele, the fact remains that this one, in that it is the reflection of its notoriety, constitutes a fundamental element of the basis for calculating his remuneration.

These new vectors of communication ensure the perpetual renewal of consumption patterns. However, due to the multiplicity of players and media, consumers often powerlessly witness the development of practices that are sometimes obscure or quite simply illegal. Disguised commercial partnerships, campaigns to denigrate companies, promotion of counterfeit or dangerous products ... many practices constitute real dangers for consumers, in particular when they infringe the principle of transparency and fairness in advertising communications. 😬

📈 Faced with the exponential development of these practices, and through its self-regulatory body, theARPP - understand the Professional Advertising Regulatory Authority - the advertising sector has adopted numerous recommendations aimed at imposing a body of common ethical rules when developing any influence campaign. If this corpus constitutes a normative starting point for the supervision of campaigns, many agencies and consumer associations have, in turn, proceeded to the construction of ethical charters. A question then arises: why did the legislator, as creator of the rule of law, not set about enacting a specific legal framework for influencers and influence campaigns?

The answer to this relatively simple question is divided into two stages. Firstly, the role of the legislator is not to enact laws of circumstance. To be able to enact a body of general standards, the latter must first adopt a sufficiently lasting vision of existing practices. On the other hand, the rules of law, as they exist today, make it possible to govern a certain number of situations relating to influence marketing and communication via these "new opinion leaders". 🤓 So, what are the DOs and DON'Ts?

TOP 4 legal recommendations to follow for any influence transaction 

1. Ensure the legality of your influencer campaign 👀

Product promotion sponsored through advertising communication on Social Media is authorized by law in compliance with the ethical rules and practices in force for advertising carried out by electronic means.

Thus, it is advisable to take an interest in the content of the sponsored publication, both from the point of view of the product on which the publication relates, and the way in which it is the subject of a commercial presentation.

Regarding the nature of the products and in the absence of specific regulations applicable to influencers, it must be considered that the latter are subject to common law. Since then, products whose placement can be perilous are classified into three categories:

  1. Products whose placement is strictly prohibited (tobacco, alcohol, drugs);
  2. Products whose placement is strictly regulated (infant formula, food products, cosmetics, gambling, financial products);
  3. Products not subject to specific regulations.

With regard to the way in which a product is subject to business presentation, it is necessary to ensure compliance with three fundamental principles:

  1. Child protection;
  2. Respect for the image of the human person;
  3. Respect for the principle of loyalty and honesty.

The legality of an influence campaign is therefore assessed in the light of this double requirement compliance with the regulations applicable to the promotion of the targeted product, and compliance with the principles applicable to the implementation of this commercial promotion.

2. Observe the rules relating to product placement ✅

The influencer, who expresses himself in the context of a commercial collaboration with a advertiser, must comply with the same rules as those for classic advertisements. The content creator must take great care not to disseminate misleading or deceptive advertising. In addition, it must also be careful not to denigrate the advertiser's competitors, or create any confusion with another brand. In the same way as for any communicator, the influencer is supervised during the realization of a comparative advertisement.

Through its recommendations, the Professional Advertising Regulatory Authority has enacted specific rules for commercial partnerships on social networks.

Also, any commercial collaboration involving reciprocal commitments between an influencer and an advertiser must be brought to the attention of the public, explicitly and instantaneously. The influencer must unequivocally indicate the existence of this collaboration (#partenarait # sponsored #collaboration) and this, without any action necessary on the part of the user to become acquainted with it. These transparency obligations result in particular from the Consumer Code and the law for confidence in the digital economy (LCEN).

Otherwise, the influencer is required to principle of loyalty. In practice, this means that the latter must remain sincere and honest during any product presentation. They must retain their capacity for critical judgment and the possibility of sharing it with their community.

In any case, the terms of a commercial partnership can not come to restrict this capacity, by imposing a positive presentation.

3. Contractualize its partnerships ✍️

Just like a brief clear and carefully drafted is essential for the implementation of a communication campaign, the prior conclusion of a contract is essential to ensure a good understanding of the respective expectations of each of the parties.

The contract is an opportunity to define the products on which the partnership will relate, as well as the duration of this one. It also specifies the platforms on which the content creator will be required to carry out his publications as well as the frequency of the latter. In addition, the contract defines the terms for calculating the influencer 's remuneration and any royalties due to the latter.

This agreement of wills specifies the obligations of the parties: the obligation to moderate the publication support accounts, the obligation to maintain publications, the exercise of an advisory obligation for the production of publications, the obligation to provide statistics after the campaign, the prohibition of denigrate the brand ... A non-competition, unforeseen or early termination clause may possibly be added to the contract.

4. Be careful with the reuse of created content‼ ️

The question of the re-use, by the brand, of the content created by the influencer, has long remained detrimental to the latter. Indeed, if the partnership contract provides for the performance of a defined service for a fixed remuneration, this cannot be used as a support for an appropriation by the advertiser of the content produced on this occasion.

It is thus in total violation of the moral and economic rights of content creators, that many advertisers still practice to appropriate, modify and reuse this content on their own account.

From a legal point of view, this practice infringes two fundamental rights recognized to all individuals:

  • Image rights : attached to the right to privacy, it aims to protect individuals against the production and publication, without authorization, of their image (any representation by means of an art or a technique).
  • Copyright : component of the right of ownership, it devotes a protection to the author of a work of the mind, and by the only fact of its creation, of an exclusive right of ownership and opposable to all.

Thus, in the absence of any specific provision specified in the partnership contract and relating to the possibility for the advertiser to reuse the content created by the influencer, the latter will not be able to download, capture, modify or republish. , neither distribute nor reuse the image and content of the creator.

Alexandre Bigot Joly

Alexandre Bigot Joly

Lawyer at the Paris Bar and founder ofINFLUXIO - law firm whose practice is entirely dedicated to influencer marketing and digital communication players. 

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