French economy ministry announces laws to reinforce Responsible Influence, releases ‘Best Practice Guide’ for influencers

1. Am I An Influencer?

An influencer is any natural or legal person who, for a fee, mobilizes his or her audience.

An influencer is somebody who  communicate electronically with the public and promotes , directly or indirectly, goods, services, or causes of any kind.

As soon as I receive financial or in-kind compensation to promote a brand, I’m an influencer.

2. Am I allowed to work as an influencer if I am also a salaried employee or civil servant?

Some companies or government bodies may have strict rules on incompatibility with other activities or a duty to inform the employer. If I already have a professional activity as an employee or civil servant, I need to check that my main activity is compatible with my influencer activity.

To do this, I can ask my employer, or find out about the rules of multiple jobholding :

• For employees: service-public.fr/particuliers/vosdroits/F1945
• For public-sector employees: service-public.fr/particuliers/vosdroits/F1648

Please note: if I already run another business as a sole trader, and I also want to run my influencer/content creator business as a sole trader, I must attach my influencer/content creator business to my first sole trader business.

3. I'm a minor; Can I become an influencer?

Because more and more minors are being staged by influencers, those under 16 will benefit from the protective provisions of the labor law that govern  the employment of minors (such as child models). Essentially, prior approval will be required, and the income generated by this activity will be protected until the person  reaches the age of majority.

If I’m under 16, I can be employed by a company engaged in influencing activities.

I need to obtain prior approval from the government, and 90% of the money I earn through commercial influencing  will be held in escrow until I come of age.

If I am over 16 and under 18 but not emancipated, I have two options:

• I can set up and manage a one-person company or take over and manage a limited liability sole proprietorship  with the authorization of my legal representatives (parents or family council) who will have decision-making power over certain acts;
• I can be employed by a company with commercial influence, provided my legal representatives (parents or family council) give me permission and sign my employment contract.

If I’m over 16 and emancipated, I can act as an adult.

4. How do I declare my activity as an influencer/content creator?

When I start my business as an influencer, I declare the creation of my company on the guichet unique des formalités des entreprises website at this address: formalites.entreprises.gouv.fr. I can do this at the earliest one month before the start-up and at the latest within 15 days of its commencement.  My declaration will be forwarded  to the appropriate bodies, enabling me to obtain a SIREN or SIRET number, which is essential for future tax and social security formalities. Depending on my  situation, I  may fall into one of the following categories:

• I If my content creation activity aims to promote goods or services in return for an economic benefit or benefit in kind, I enter my activity in the one-stop shop under the category “service activities – information services – influencer and creator”. My activity is commercial (I’m registered with the Trade and Companies Register and the National Business Register), my income is declared as BIC and I’m affiliated to URSSAF – SSI;
• I If my content creation activity is not aimed at promoting goods or services in return for an economic benefit or a benefit in kind, I enter my activity in the one-stop shop under the category “service activities – information services – community manager, web ergonomist, professional blogger, web editor”. My activity is self-employed (I’m registered with the national register of companies only), my income is declared as non-commercial profits and I’m affiliated to URSSAF-SSI;
• I If my content creation activity is an artistic creation activity, I enter my activity in the one-stop shop under the category “Service activities – Arts, culture and entertainment – Creative, artistic and performing activities – Videographer, vlogger, blogger”. My activity is self-employed (I’m registered in the national register of companies only), my income is declared as BNC or deducted by a third-party distributor, and I’m affiliated, after validation, to the social security scheme for artists and authors.

The entreprendre.service-public.fr website provides all the information you need to prepare your business start-up, choose your status and register your company.

5. How do I meet my tax and social security obligations?

In order to carry out my tax and social security formalities, I need to create a professional space on the impots.gouv.fr portal. This free, secure professional space enables me to declare and pay the main business taxes, make claims for refunds, consult my company’s tax account and carry out online procedures (information, claims, etc.) via a secure messaging system.

• My tax category, my tax system and the tax declarations I need to make: I refer to the “Livret fiscal du créateur d’entreprise”:
• My social security system and the social declarations I need to make: I refer to the dedicated Urssaf service

If I’m still part of my parents’ tax household, they’ll have to declare my income.

Find out more on the economie.gouv.fr website.

Warning:  In the event of failure to comply with my tax declaration obligations, or of omission, insufficiency or inaccuracy in the declarations, I am liable to penalties of up to 80%.

Persons domiciled in France are subject to tax on all their income, whether French or foreign. Persons domiciled outside France remain liable for tax on their French-source income, subject to the provisions of the tax treaty between France and their country of residence. For further information, visit www.service-public.fr and impots.gouv.fr, particularly the “International” section.

6. Is all my income taxed and do I have to declare it?

All the income I earn from my influencer activity, whether it’s my main or secondary activity, is subject to taxes, contributions and social security contributions, from the very first euro. I must therefore declare income from this activity in my tax and social security returns.

7. Do I have to declare gifts I receive from advertisers?

Whatever my status, the sums or “gifts” I receive from advertisers must be declared from the first euro, as detailed above. Full details of how to assess the amount of such remuneration can be found on the impots.gouv.fr website.

8. Does my content benefit from legal protection?

If I create content in an original form, my  content is protected by copyright. As such, I have moral and economic rights to your content.

• As a moral right, I can decide how, when, and in what way my  content should be disclosed, and whether it should continue to be circulated. I can also demand that my  name be mentioned whenever my content is used and that the integrity of my  content be respected.
• I may authorize or prohibit the reproduction or representation of my content.

Consequently, any use of my  content requires my authorization. A third party may not reuse my publications and/or videos without first obtaining the rights from me.

In any case, the intellectual property regime applies to influencers who create original content within the meaning of copyright law. I can register my trademarks on the website of the Institut national de la propriété industrielle (INPI).

9. Am I allowed to use music in my content?

If it’s original music I have composed, written, and performed myself, there’s no problem. I  don‘t need to apply for authorization if I am the composer and performer.

On the other hand, if the music has been composed, written, and performed by a third party, several situations arise:

• either the music has fallen into the public domain (70 years from the year following the death of the author) and its use does not require prior authorization;
• or the music is marketed under so-called “royalty-free” licenses. In this case, use does not require prior authorization, but must comply with the conditions laid down in the license;
• or the music is not free of rights, and its use requires the prior authorization of its author or assignee. Authorization may be granted free of charge or for a fee (the second case is more common in practice).

Using a piece of music without authorization and without respecting the conditions laid down constitutes counterfeiting and exposes me to civil and criminal penalties. More generally, works of the mind (music, but also drawings, books or plastic works) are protected by copyright if their form is original. Their use therefore requires prior authorization from the author of the work or his successors in title.

Intellectual Property – Copyright and image rights in the digital age (1) | Le site Propriété intellectuelle economie.gouv.fr provides useful information on copyright.

10. If I use an influencer agent, do any specific rules apply?

Influencer agents are now defined in law. The activity of an influencer’s agent thus consists, for a fee, in representing natural or legal persons exercising the activity of an influencer defined in the law, to natural or legal persons and, where applicable, their representatives, requesting their services, with the aim of promoting, by electronic means, goods, services, or any cause whatsoever.

If I  use an agent, I must sign a contract with him or her. This contract must contain important information such as :

• the absence of conflicts of interest between the influencer and his agent;
• the amount paid by the advertiser (brand) for the influencer’s services – this ensures transparency for everyone (influencer, agent, and advertiser).

11. Can the platform limit or block my content? Can it use it as it wishes?

If I post illegal content and it is reported, the platform must promptly remove my content. In addition, the content must comply with the platforms’ terms and conditions of use, which may overlap with or go beyond illegal content as defined by law, depending on their moderation policy.

If the content is legal and complies with the terms and conditions of use, the platforms have no valid reason to block or restrict your content. Platforms do not have to intervene in the editing of your content without your authorization.

12. Do I have the right to criticize a brand?

Expressing positive or negative opinions, criticisms, or observations about a brand is a matter of freedom of expression.

However, there are limits to freedom of expression:

• Defamation: I may not publicly allege or impute precise and determined facts that are prejudicial to the honor or consideration of a natural person or legal entity that it is possible to identify, unless I provide proof that these facts are true or that I was  acting in good faith (which requires the meeting of four elements: the pursuit of a legitimate aim, the absence of a desire to harm, serious investigative work, and caution in expression).
• Denigration: I can’t violently criticize a brand, which would be tantamount to wrongful disparagement, for which I could be held liable. In fact, denigration characterizes the situation in which “even in the absence of a situation of direct and effective competition between the persons concerned, the disclosure by one is  likely to discredit a product marketed by the other constitutes an act of denigration, unless the information in question relates to a subject of general interest and rests on a sufficient factual basis, and provided that it is expressed with a certain degree of restraint” (Court of Cassation ruling no. 18-15651 of March 4, 2020).

13. What should be included in the contract I sign with my agency or the advertiser whose brand I'm promoting?

As an influencer, I provide a commercial service to an advertiser. A written contract is recommended, and even obligatory, when the contract is for a sum or value exceeding a certain amount. This contract can be signed between the advertiser and myself, or via my agent if I have one.

While freedom is the rule, good editorial practice generally requires a minimum of formalism, such as :

• clear presentation of the parties to the contract (name, address and, in the case of a commercial company, its corporate form, the amount of share capital, the name of the legal representative and his or her registration number in the Trade and Companies Register);
• the commitments of each party, and in particular, as regards the influencer: what is expected of him in terms of commercial influence operations, and if he creates original content for the advertiser, to indicate separately whether the latter will have the right to exploit this content, specifying the extent of this right, its geographical scope of exploitation and the duration;
• the remuneration (it must be determinable) or the value of the benefit in kind to be received for the commercial influence operations solicited, and if applicable for the transfer of intellectual property rights and image rights;
• contract duration;
• the law applicable to the contract will necessarily be French law if the operation of commercial influence is aimed in whole or in part at a public established on French territory.

If I use an influencer’s agent, he or she will have to sign a contract with me .

The contract defines  the type of service offered (at least one performance), and sets the commission the agent  expects to receive in return. His remuneration may consist of commission in the form of a rate deducted from the remuneration paid by the advertiser. They may also bill you for other services. I will need to be well-informed and negotiate carefully, and I can always take advantage of the competition.

The influencer agent can negotiate the contract with the advertiser on my behalf and sign it.

14. Who will be civilly liable in the event of damage caused to others during the implementation of my marketing campaign?

The implementation of a commercial influence operation can sometimes infringe upon the rights of people who are not involved in the operation. In practice, this concerns cases of infringement of intellectual property rights belonging to a third party, such as the use in a video of music that is not free of copyright, without prior authorization from its author or copyright holders (see point 9, p.8). In such cases, the influencer and advertiser are jointly and severally liable. Their intermediaries (influencer’s agent, advertiser’s representative) are equally liable.

15. Do I have to indicate the commercial intent of my publications?

Yes, if my publication or content aims to promote a good or service, and if I have received remuneration for its distribution: payment, partnership, percentage of sales, free products, trips, invitations, etc. As an influencer, my opinions, feedback, or crash tests can be considered as a commercial practice. I therefore have obligations to respect under the French Consumer Code, including transparency regarding advertising.

No, if the sole purpose of my publication is to provide information about a product for which I have not received or will not receive any consideration.

16. Do I have any public/community obligations?

Yes, the law requires me to specify the commercial nature of my content, and to ensure that the product I am advertising is not fictitious.

I can find all the information I need on general commercial law at the entreprendre.service-public.fr website.

17. How do I indicate the commercial nature of my content?

I must indicate the commercial or advertising nature of my content or publication by the words “advertising” or “commercial collaboration”.

This notice must be displayed clearly, legibly, and identifiably on my  publication for the duration of the promotion.

I must also clearly identify the advertiser/brand on whose behalf the commercial communication is carried out.

Most platforms today offer a feature to specify whether a content is commercial or advertising. Use it!

Warning: failure to indicate “advertising” or “commercial collaboration” in a communication may constitute a “misleading commercial practice”, punishable by two years’ imprisonment and a fine of 300,000 euros.

18. How much can I praise a product or service?

My  sales arguments and promises must be true and verifiable. I can’t promote qualities (“made in France”, “natural”…), gains or results (“good for your health”, “-10 kg in one month”, “Win 5,000 euros”…) if I can’t justify them.

It is also forbidden to claim that a product or service increases the chances of winning at games of chance.

It is also forbidden to promote, directly or indirectly, products, procedures, techniques and methods presented as comparable, preferable or substitutable to therapeutic procedures, protocols, or prescriptions.

It is also forbidden to run promotions involving (most) non-domestic animals, except for zoos.

Finally, commercial communications that are based on false allegations or that you cannot substantiate also constitute deceptive commercial practices.

19. What products and services can't I promote?

As an influencer, I can be called upon by brands to promote their products, and I must respect the clauses of the contract that binds me to these brands (the advertisers).

Nevertheless, it is strictly forbidden to promote any counterfeit goods or services. Counterfeiting can concern any type of product (medicines, clothing, toys, cosmetics, perfumes, etc.), or any creation (video, music, image, logo, etc.). Indeed, any infringement of an intellectual property right within the meaning of articles L335-2, L513-4, L521-1, L613-3 and L613-4, and L713-2 of the French Intellectual Property Code is considered counterfeiting.

Influencer marketing, like any commercial practice, must also respect the rules of the game, specific provisions relating to the promotion of certain goods or services.

On the Internet, as everywhere else, advertising is regulated and the same rules apply. They apply in particular when you promote the following products, which are particularly closely supervised:

• digital assets (crypto-assets, etc.), public offerings of tokens and the provision of services involving digital assets, subject to AMF authorization (registration and/or approval);
• games of chance and gambling, only on platforms that allow minors to be excluded from their distribution, and for which the prohibition on gambling by minors must be mentioned (in addition to the general provisions of Title II of the French Internal Security Code ;
• alcoholic beverages (articles L.3323-2 to L.3323-4 of the public health code);
• medicines for human use (articles L. 5122-1 to 16 of the French Public Health Code);
• medical devices (articles L.5213-1 to 7 of the French Public Health Code).

In addition, advertising is prohibited for :

• tobacco and tobacco products, electronic cigarettes and nicotine products;
• prescription drugs
• risky financial products as defined in article L.533-12-7 of the French Monetary and Financial Code (where you could lose all or part of your money), ;
• Subscriptions to sports tips and predictions.

20. What if I'm dropshipping?

Dropshipping is a form of Internet selling in which the seller is responsible only for marketing and selling the product. It is the seller’s supplier who dispatches the goods to the end consumer. The consumer is generally unaware of the supplier’s existence or role.

Although I don’t take responsibility for delivering the products I sell, this method of selling commits me  because I am and remain the seller, and I am responsible to the buyer. Therefore :

• I need to make sure that the products comply with applicable legislation (national or European, e. g. requiring CE marking for certain products), that they are not dangerous, either for adults or, where applicable, for children, and that they are not prohibited. I need to make sure that products are available and legal, and in particular that they are not counterfeit;
• I must inform the buyer of the real identity of the supplier if it is not you.
• I need to display the details of these products: the price (including VAT in euros), characteristics (size, quantity, composition…) and terms of sale (payment terms, delivery times…) must be clearly shown.

If certain mandatory information is missing, the seller is liable to a fine of up to 75,000 euros for a legal entity and 15,000 euros for an individual.

• I am solely responsible, vis-à-vis the buyer, for the proper execution of the order and the delivery of the product on time and in good condition.
• I  must respect my  customer’s right of withdrawal. Within 14 days of the product’s delivery date, the customer may cancel the order and return the product to you. You must then reimburse the customer.

I  must also be registered with the French Trade and Companies Registry.

Failure to comply with these rules may result in administrative or criminal penalties.

21. Does this right apply if I'm not based in France?

All these provisions apply to influencers, regardless of their location, as long as they address a French audience. Influencers who are not established in Europe must designate a legal or natural person in Europe to ensure that their contracts comply with French law, and to respond to requests from the authorities.

All influencers, whatever their mode of operation, must take out professional indemnity insurance in the European Union; when established outside the European Union, the Swiss Confederation or the European Economic Area.

In this way, an influencer based abroad will have his or her content blocked if he or she fails to comply with French law, particularly as regards to the commercial nature of his or her publications, or promotes products or services whose promotion is regulated or prohibited.

Platforms can be held liable if they fail to take action against content that has been reported to them. In the most serious cases, criminal sanctions may be imposed, including through international cooperation between public authorities.

22. Do I have to show the retouching of my photos and videos?

Today, this transparency is mandatory for photos of models used in advertising campaigns when the morphology of a silhouette has been retouched. From now on, with the law on commercial influence, the same will apply to influencers when they produce a commercial communication or advertisement. They will be required to clearly and explicitly state “Image(s) retouched(s)”. The same applies to photos, videos and representations of a silhouette or face created by artificial intelligence, which must be labeled “Virtual image(s)”.

23. What rules apply if I publish the image of my minor child on online platforms?

Pursuant to Articles 9 and 371-1 of the French Civil Code, if I have parental authority, I am  responsible for ensuring my  child’s safety, and for respecting his or her image and privacy. In addition, depending on their age and degree of maturity, I  must involve them in requests concerning them. These obligations apply when I  publish images and/or videos of my  child on the platforms.

In addition, law no. 2020-1266 of October 19, 2020 frames the commercial exploitation of the image of children under the age of sixteen on online platforms and will now apply to influencers.

On November 22, 2022, online platform operators also signed a Charter aimed at promoting user information and protection with regard to the dissemination of the image of minors on online platforms. Check it out!

24. What should I do if I notice content or practices on a social network that seem illegal?

If I notice that another user has published content that I  feel is illegal, or that their behavior seems problematic, I can report it to the platform, using the form that the latter must make available for this purpose. Above all, it’s best not to react to the content (e. g. by republishing it), as this would have the effect of increasing its virality on the platform.

It’s important to know that some content may be legal under French law, but prohibited by the platform’s terms of use and rules. That’s why it’s a good idea to report content that I  think may be harmful, but is not obviously illegal.

The platform must deal with my complaint as quickly as possible and explain the reasons for its decision in a clear, easy-to-understand manner. If I am  not satisfied with the outcome, I can lodge a complaint with the platform, using the form provided.

It is also possible to report misleading or unlawful content relating to the promotion of certain products to Signal Conso (DGCCRF services – www.signal.conso.gouv.fr). If I  witness content that incites violence, threatens or promotes terrorism, I  can report it to the police via the “Pharos” reporting platform: www.internet-signalement.gouv.fr

I can also report harmful content and behavior via an association known as a “trusted reporter”. For example, the 3018 number, operated by e-Enfance, advises minors who are victims or witnesses of digital violence, and can intervene with platforms to ensure that the content in question is removed within a few hours. Several associations for victims of influence or consumer protection will be designated as trusted signatories in the coming months.

I'm not sure about the content

• The words “advertising” or “commercial collaboration” are not displayed in a commercial publication by the influencer. The influencer advertises a product or service (tobacco, alcohol, gambling, financial products, health products, etc.) contrary to regulations.

Or

• Influencer is dropshipping without respecting consumer rights. Influencer promotes a dangerous product.

Please note

25. What are the penalties if I break the law?

Failure to indicate the commercial intent of a communication is liable to constitute a misleading commercial practice, punishable by imprisonment for two years (or 7 in the case of aggravating circumstances) and a fine of 300,000 euros.

In addition, the Direction Générale de la Concurrence, de la Consommation et de la Répression des Fraudes (DGCCRF) has the power to require the platform to take various measures to stop illegal content, such as :

• the display of a warning message to consumers;
• Dereferencing an account on a social network ;
• Restricting access to or blocking an account on a social network.

These measures can be taken when an influencer commits an infringement of the consumer code and fails to respond to an injunction issued by the DGCCRF. The DGCCRF may also issue an injunction, subject to a daily fine until such time as the infringement is brought to an end.

Platforms may themselves decide to temporarily or permanently suspend your account if you fail to comply with the law or their terms and conditions.

The various advertising bans are also subject to specific penalties, defined either in the relevant codes or in the law aimed at regulating commercial influence and combating the excesses of influencers on social networks (certain bans in this law are subject to penalties of up to 2 years’ imprisonment and 300,000 euros in fines, and a possible additional penalty of banning the activity of commercial influence, or even other activities). The table below gives examples of penalties.

26. "Everyone thinks and says what they want on the Internet": does freedom of expression allow for all opinions?

Freedom of expression – the right to freely express one’s opinions – is the same online as it is in real life.

However, this freedom to freely express one’s ideas is not absolute, and there are certain limits to its exercise. For example, incitement to discrimination or violence is prohibited.

Similarly, while the dissemination of false information is not necessarily illegal, and the publication of false information is not necessarily done with the intention of misleading, in certain cases specified by law, it may be punishable. Online platforms are thus obliged to take measures to combat the dissemination of false information likely to disturb public order or alter the sincerity of elections.

Influencers, with their large audiences, have a responsibility to protect the public. It is therefore essential to check out and research information    for myself before publishing or relaying it, especially as online platforms now play a major role in the mechanisms for informing and shaping public opinion.

27. How can you integrate environmental issues into your marketing activities?

A good knowledge of the advertisers who approach me enables me to choose brands for my ads that are aligned with my values. For example, I can ask brands for proof of their CSR commitment.

I can also highlight the ecological impact of your communications, especially sponsored content.

To find out more, take a look at the “Paye ton influence” and “A quand demain” influence ethics charters.

28. What is the ARPP Code of Recommendations?

On the ARPP website, I  can find recommendations concerning communication :

• “Digital advertising communication,”
• “Sustainable development,”
• “Food behavior and health claims”,
• “Image and respect for the individual,”
• “Cosmetics,”
• “Alcohol, Gambling and the Financial Sector.”

I can decide to join the ARPP and become part of the regulatory framework of the advertising industry. I hereby undertake to comply with the ARPP Code of Advertising Standards.

Recommendations of the advertising and in case of non-compliance to expose me to a sanction of the Jury de déontologie publicitaire (JDP).

29. How to take the Responsible Influence Certificate launched by ARPP?

ARPP’s Responsible Influence Certificate, created in September 2021, proves that I have  been made aware of the legal and ethical framework of influence marketing.

Candidates are required to complete a 3.5-hour online training course that informs influencers and gives them the tools to protect their audiences and consumers.

This training also enables them to differentiate themselves with brands, agencies and institutional clients who want to work with responsible content creators. That’s added value for me .

This certificate is based, among other things, on measures relating to transparency, fairness, consumer protection, the environment, the protection of minors, the status of child influencers, image, respect for the individual and the fight against sexism and all forms of violence…

30. What other initiatives exist?

Respecting a charter applicable to influencers is an opportunity to share with other influencers, as well as brands and advertisers, a vision of the values applicable to influencer marketing.

It also reinforces the sense of trust that my  work can inspire in consumers and advertisers.

There are several ethical charters in influencer marketing, including (but not limited to) :

• Accor: Influencer collaboration charter
• Kid’ influencers Charter
• Charte de la Relation Influenceurs (Charter for Influencer Relations) adopted by the Syndicat du Conseil en Relations Publics (SCRP) (French Public Relations Consultancy Association)
• WOÔ – Creative Influence Marketing Agency: Influence Marketing Code of Ethics

Since April 2023, the 55 CPRS member agencies have even been able to obtain the first e-label “Responsible Influence Consulting” assessed by AFNOR Certification.

Check out all these initiatives!

31. Where else can I find useful information?

• Ministry of the Economy, Finance and Industrial Sovereignty website digital
• ARPP website
• General terms and conditions of each platform
• The website of UMICC, a professional federation of influencers and content creators.

Kolsquare, a data-driven Influencer Marketing platform, helps brands to optimize each step of their Influencer Marketing campaign with help of data and Machine Learning. The solution facilitates the identification of the right profiles for a campaign amongst a catalog of over 3 million KOLs (Key Opinion Leaders), and enables the measurement and performance analysis of each campaign. Kolsquare is a team of thirty experts who accompany you throughout the year in the implementation of your influencer strategies, to help you build effective campaigns and increase your knowledge of the Influencer sector through studies, barometers and enriching insights.