Distribution
Influencer contracts - Explanations
The digital age has given rise to a new form of commerce, commercial influence, with the need for a compliant influencer contract. Law no. 2023-451 of 9 June 2023 was established to regulate this practice and to combat possible abuses in influencer contracts. It
Reading time:
2 min
The digital age has given rise to a new form of commerce, commercial influence, with the need for a compliant influencer contract. Law no. 2023-451 of 9 June 2023 was established to regulate this practice and to combat possible abuses in influencer contracts. It introduces significant changes for influence agencies, advertisers, and influencers. If you have a need, do not hesitate to call on my services as a business lawyer.
What is commercial influence?
Commercial influence by electronic means is defined by the law as the activity carried out by: “persons or entities who, in exchange for remuneration, use their notoriety to promote goods, services, or a cause to their audience via electronic channels.”
Role of the influencer agent in the influencer contract
According to Article 7 of the law, the activity of an influencer agent consists of representing, for remuneration, the persons or entities carrying out the activity of online commercial influence, in order to promote goods, services or a cause. These agents are required to defend: “the interests of their clients, to avoid conflicts of interest, and to comply with the law.”
The new contractual requirements
Contracts between persons carrying out the activity of online commercial influence and influencer agents, advertisers, or their representatives must now be drawn up in writing in accordance with Article 8 of this Law no. 2023-451. They must include specific information on the identity of the parties, the nature of the assignments, the remuneration, the rights and obligations, and be subject to French law where the influence activity targets a French audience. There are also remuneration thresholds that exempt low-value commercial influence activities from this obligation. This amount has yet to be defined by decree.
Joint responsibilities
Advertisers, their representatives and the persons carrying out the activity of commercial influence are jointly and severally liable for damage caused to third parties in the performance of the commercial influence contract. This reinforces the importance of transparency and accountability in the contractual relationships between the parties.
Legal representation and Insurance
For influencers and influence agencies based outside the European Union, in Switzerland or in the European Economic Area, they must designate a legal representative within the territory of the European Union. This person is responsible for ensuring the compliance of commercial influence contracts targeting a French audience. In addition, they are required to take out civil insurance with an insurer in the European Union to cover their professional civil liability. This law represents a crucial step for the regulation of the influence industry in France. It offers strengthened protection for consumers, while establishing clear guidelines for influence agencies, advertisers and influencers. It is essential for all parties concerned to familiarise themselves with this new legislation in order to remain compliant and promote ethical commercial practices. To find out more, do not hesitate to contact me!
To learn more
What is commercial influence within the meaning of the law?
The law of 9 June 2023 defines it as the activity of persons or entities who, for remuneration, use their notoriety to promote goods, services or a cause to their audience via electronic channels. This broad definition now regulates a rapidly growing practice.
Must the influencer contract be in writing?
Yes. Since the law of 9 June 2023, contracts between persons carrying out commercial influence and agents, advertisers or their representatives must be drawn up in writing. This written form is now a legal obligation, and not a mere precaution.
What must an influencer contract contain?
The contract must in particular specify the identity of the parties, the nature of the assignments, the remuneration, as well as the rights and obligations of each party. Where the activity targets an audience in France, it must be subject to French law. These particulars are required by the law of 9 June 2023.
What is the role of the influencer agent?
According to the law, the influencer agent represents, for remuneration, the persons carrying out online commercial influence in order to promote goods, services or a cause. They must defend the interests of their clients, avoid conflicts of interest and comply with the law.
Does the law apply to influencers based abroad?
Where the influence activity targets an audience established in France, the contract must be subject to French law. The law thus seeks to protect the French audience regardless of the influencer's place of establishment, which has consequences for the drafting and the law applicable to the contract.
What obligations apply to influencers and advertisers?
Beyond the mandatory written form, they must comply with the rules on advertising transparency, flag commercial content and comply with sector-specific regulations (health, finance, etc.). Failure to comply with these obligations exposes them to sanctions and to the parties being held liable.
Why have your influence contract drafted by a lawyer?
Because the law of 9 June 2023 has strengthened the requirements and breaches are sanctioned. A lawyer secures the mandatory particulars, regulates the remuneration and the rights to the content, and adapts the contract to the applicable rules, protecting both the influencer and the advertiser.
Does the law protect minor influencers?
Yes. Where the activity is carried out by a person under the age of sixteen, the law of 19 October 2020 applies and imposes specific protections, in particular prior authorisation. The drafting of the contract must take account of this framework protecting minors.
Still have questions?
Our team is available!
Have a question?
Ressources
Aller plus loin
Digital and Distribution Law Attorney, Paris Bar. We secure your contracts, data, and business.
Services
Sectors