France leads on specific regulation for influencers and the EU may follow 

Across Europe there is concern about the lack of transparency around influencer marketing. In France this issue has resulted in MPs proposing draft bills. Meanwhile the government is conducting a public consultation. 

French draft bills

Two draft bills have been proposed by some MPs to create a legal framework for the influencers' activity on social networks and to define a new specific liability regime applicable to them. The aim is to fight against the spread of misleading and illegal commercial practices online. 

The draft bills provide for a legal definition of influencers (non-existent today), some transparency obligations, the prohibition to promote a list of goods and services, as well as the obligation for operators of online platforms to implement a reporting system for influencer’s content relating to prohibited, aggressive and misleading commercial practices. Several administrative and criminal penalties are also provided for in the event of non-compliance with contemplated legal framework.

Public consultation 

In parallel, the French government launched a public consultation on influencers and open until 31 January 2023. The consultation focuses on 11 concrete measures, ranging from an official definition of the influencer to a ban on promotion for certain products, through the establishment of a code of good conduct. New obligations for social networks and a strengthened role for supervisory authorities are also on the table. The consultation therefore differs from the current draft bills, as it covers a larger range of subject. 

Participants to the consultation can comment on each of the 11 measures (comments are made public) and answer multi-choices questions.  

Eleven measures 

1. A definition of influencers: “Any natural or legal person whose activity consists, for consideration (in kind or in financial form), in creating and producing content aimed at promoting goods or services of which they are not necessarily the producer or service provider, disseminated by means of digital communication, on the occasion of the expression of their personality". (The definition provided for in both draft bills is not the same.) 
2. A definition of the influencer’s agent: "The natural or legal person who has received a mandate, free of charge or against payment, from one or more influencers to place them, represent them and assist them with the persons ordering the influence marketing services (the brands)". (The definition provided for in both draft bills is not exactly the same.)
3. A ban on the promotion of certain products and services by influencers: The consultation give some examples but does not provide a list of products. The draft bills provide one, which includes pharmaceutical products, medical devices and surgical procedures (with the exception of relaying government public health campaigns), and financial investments or investments, and digital assets involving risks of loss for the consumer. 
4. Reinforced contractual obligations for influencers and brands: There is an obligation of a written contract between the influencer and content creator and the brand and advertiser; and mandatory notices and clauses in this contract lay down the rights and obligations of the contracting parties (for example, determination of all influencer marketing actions requested by the advertiser).
5. Reinforced contractual obligations for influencers and influencer agencies: There is an obligation of a written contract between the influencer and content creator and his or her agent; and mandatory notices and clauses in this contract lay down the main rights and obligations of the contracting parties (for example, the transparency of the influencer agency’s remuneration conditions agreed upon with the advertiser, or even the introduction of a maximum cap).
6. Reinforced obligations for social networks: the measure consists in encouraging online platforms providers, by posing an obligation of means (deployment of technical means of detection) to a systematic verification of the conformity and non-dangerousness of products promoted by influencers; and relaying the virtuous self-regulation mechanisms such as the certificate of responsible influence set up by the ARPP, the French advertising self-regulatory organization, by giving them a good visibility on the platforms. Moreover, the scope of the procedure for blocking the influencer pages proposing illegal offers could be widened.
7. A code of conduct for influencers. 
8. A responsible label for influencers. 
9. A new professional federation. 

10.  A strengthened role for supervisory authorities. 

11.  An information site on intellectual property law for influencers. 

The EU may follow

EU is also consulting on whether it would be appropriate to regulate influencers as part of the wider consultation on the new consumer agenda. The EU has proposed creating specific regulations defining what an influencer is and the respective obligations of influencers and any business who works with the influencer. The French experience could then serve as a precedent to build a larger EU legal regime. 

Osborne Clarke comment 

It is likely that the French government will use the draft bills, which is yet to be discussed in the Parliament, in order to introduce in these bills some provisions based on the consultation outcome. This legislation, if successful, could be the inspiration for an EU-wide regulation on the issue.  However, it will be some time before we know whether the proposals to regulate influencer marketing at an EU level are going to be adopted.