Regulation of influencers: towards new obligations for online platforms operating in France?

Recently, voices were raised to call for more supervision of influencer activities, due to the increasing number of abuses observed in the sector (misleading advertising, opaque partnerships, promotion of illicit products, dropshipping) in a global movement of desertion of the so-called "traditional" communication channels in favour of social networks, particularly by the younger generation, and the emergence of a new form of online celebrity. According to the DGCCRF, the overall situation is unequivocal: further to controls carried out in the sector, it found that 60% of influencers did not comply with applicable regulations on online advertising and consumer law.

Since November 15, 2022, four bills were presented to the French National Assembly, the most recent of which dated January 31, 2023. The main proposed provisions include the creation of a legal and contractual framework dedicated to influencers, the prohibition of the promotion by influencers on social networks of certain products deemed as “sensitive” (e.g., pharmaceutical products, financial investments) or the reinforcement of means available to control authorities (notably by introducing sanctions specifically targeting influencers).

While these new obligations would primarily concern influencers themselves, online platforms are also targeted by the draft regulations. Platforms are privileged interfaces for influencers, without which nothing would be possible. They will therefore have an essential role to play in bringing order to influencer practices. Online platforms could be subject to the following new obligations:

• an obligation to inform users about prohibited commercial practices, the risks associated with these practices, and the means available to users to protect their rights in the event of online fraud;
• the implementation of a mechanism allowing any person to report illegal commercial practices. The platform will have to notify this person as soon as possible of its decision in relation to the reported content, and provide any useful information on available remedies. After a certain number of reports, the platform may be required to take action;
• the publication of an annual report on the content moderation activities they have carried out over the past year, which should include (i) the number of injunctions received from the authorities per type of illegal content (as per the provisions of the French Consumer Code), (ii) the number of complaints received through the internal complaint handling system, the basis for these complaints, the decisions taken with respect to these complaints, the average time required to reach these decisions and the number of cases in which these decisions were overturned, and (iii) the measures taken to mitigate the risks arising from the use of their services: dissemination of misleading advertisements, influencer scams and their negative effects on privacy and family life;
• the communication to the competent administrative authority of any useful information to prevent public diffusion of misleading advertising contents;
• the implementation of the necessary means to proceed with the prompt withdrawal of contents following a withdrawal request by the competent administrative authority;
• the affixing of a message making any convictions due to non-compliance with the consumer code public on incriminated accounts.

Next steps

Online platforms operating in France must keep a close eye on the potential consequences of these new draft regulations. If these new obligations are adopted, they will be required to:

• implement new internal tools and processes (reporting, communication with users and relevant authorities, publication of sanctions on relevant accounts);
• modify (if necessary) their general terms and conditions of use in order to (i) comply with these new obligations to inform users and (ii) ensure sufficient latitude in the management of incriminated content and accounts.

In practice, the DGCCRF is often very attentive to changes suddenly made by platforms to their online tools and processes as well as to their contractual documentation, as these changes often have strong impacts on the protection of users' rights and personal data. Thus, from experience, these types of changes require some anticipation and preparation, to ensure proper implementation within the required timeframe (both from a consumer law point of view and in relation to potential internal constraints for platforms, especially in terms of technical updates).

This anticipation will be all the more relevant for international platforms that tend to have a harmonized global approach to changes they implement to the maximum possible extent: as long as the platform is accessible to French users, these local specificities will have to be taken into account to ensure compliance with local laws.

Do not hesitate to contact the author of this article or your usual contact at Hogan Lovells to discuss the subject further.

Authored by Jessica Clemens-Jones.