France – Social media influencers and content creators Bill of rights
June 2023 – the French Government released a bill of rights for social media influencers (i) and content creators. You fall under the new guideline if:
> You live in Europe, or
> You don’t live in Europe, but your communication caters to French people who reside in France.
Here is what you should know about the new initiative.
Right no. 1: you have the right to the legal protection of the contents that you create.
The contents that you develop are protected under the French copyright law (i) . That means you for instance decide whether you should publish the contents that you created or not. If you decide to publish them, you have the right to determine freely where, how and for how long the content can be published. You also have the right to withdraw at any time contents that you’ve created and posted.
Whenever your content is used, you have the right to request that they mention you as the author. You may also request that the integrity of your content be kept as it is.
You have the right to authorize or prohibit the reproductions or representations of your content.
Example: you create and post a short original video on TikTok. The number of people who view your video exceeds your expectations. A third party cannot reuse your video without your consent.
Note: to benefit from copyright infringement protection, the contents that you developed must highlight your personality. That means, they must be original. However, it doesn’t mean that you must be the first one to design this kind of content. Your approach must simply be original: the content must reflect your creative endeavor and provide a distinguishable variation over prior work pertaining to similar contents. For instance, the content must depict your personal choices, your sensibility, and your perception of the subject matter.
You don’t have to take any particular actions to benefit from copyright law protection. Your original contents are protected from the day that you create them.
Right no. 2: you have the right to use music in your contents.
You have the right to use in your online publications and videos:
- Original music that you composed, wrote, and performed.
- Music that is no longer protected by copyright law and that doesn’t require prior authorization to be used.
Right no. 3: you have the right to have an agent represent you.
You have the right to use the service of an agent to represent you and to help you grow. Your agent may look for paid partnership with brands or provide insights into your web and marketing strategy. Something similar to agents specialized in musicians, actors, or models’ career development.
Note: if you choose to use an influencer agent, consider formalizing your relationship in a contract, which should cover the following:
- The absence of conflict of interests between you and them.
- The disclosure of the fee that a brand pays for a campaign.
Right no. 4: you have the right to have your content posted on any social media platforms.
You have the right to publish your texts, videos, audio contents on any platform. However, you must abide by the social media platform’s terms and conditions. In addition, your contents must be legally acceptable.
Right no. 5: you have the right to critique a brand.
You have the right to say what you think of a brand. This may take the form of a positive or negative review. You’ll be exercising your freedom of speech by doing so. However, be careful not to fall into defamation or denigration. For example, you cannot violently criticize a brand.
Those are some of the rights that you have. You also have duties.
Duty No. 1: you shall indicate the commercial nature of your campaign.
You may be left with two choices:
- You’ve been paid or will be paid to promote a good or service. In that case, you must indicate the commercial nature of your influencer campaign via texts, videos, sounds. You should display a legible banner that reads “Advertising” or “Commercial collaboration” for the duration of the promotional campaign or video.
Note: if you don’t comply, you may be subject to a penalty of EUR300,000 and two years of imprisonment.
Ensure that the product that you’re marketing is real.
- You haven’t been paid or will not be paid to promote the good or service. In that case, you’re not required to display a banner that reads “Advertising” or “Commercial collaboration”.
Example: you test a product and give your opinion in the form of a video message. This message can be assimilated to a commercial practice. Therefore, you must tell your followers whether this is an advertisement or not.
Duty No. 2: you shall be able to substantiate your promises.
What you said in your posts must be true and you must be able to support them. You must be able to document the outcomes that you outlined.
Example: if you said that a product is “made in France” or “organic”, you must be able to prove it. If you promise a benefit such as “good for the health” or “22 pounds weight loss in less than 1 month”, you must be able to support it as well.
Duty No. 3: you shall not publish certain information.
You’re prohibited from engaging in a number of practices. For instance, you cannot:
- Say that a product or service increases the odds of winning the lottery or winning at any other gambling.
- Promote products, acts, processes, techniques, and methods that are purported to be comparable, preferable, or substitutable for therapeutic acts, protocols, or prescriptions.
- Plan and execute promotional campaigns that involve (mostly) wild animals, except for zoos.
Duty No. 4: you shall not promote certain products or services.
You’re prohibited from promoting counterfeited products or services, health, financial products or services and gambling.
Good or service counterfeit: you’re prohibited from promoting a counterfeited product or service. The prohibition includes counterfeited medicines, clothing items, toys, cosmetics, perfumes, music, video, image, logo.
Health or financial products or services and gambling: you’re prohibited from promoting the following goods and services:
- Tobacco and tobacco products, electronic cigarette, and nicotine products.
- Medicines that require doctor prescription.
- Financial products for which one may lose all or part of one’s money.
- Subscriptions to advice or sport predictions.
Duty No. 5: you shall adopt certain drop-shipping related practices.
You must adopt certain practices if you’re engaged in the drop-shipping business.
Duty to inform
Some of the things that you must do include the following:
- Disclose the name of the actual supplier to the buyer.
- Consider disclosing the details of the products: price (sales tax included in Euros), characteristics (size, quantity, etc.) and the terms and conditions of the transactions (payment options, delivery date, etc.).
- Ensure that the products that you’re selling are compliant with the applicable law and regulations, that they’re safe or are authorized to be sold.
Penalty: if you don’t follow that guideline, you may incur a penalty. The amount of the penalty varies depending on whether you’re an individual or a company.
- If you’re a company, you may incur a penalty of up to EUR75,000.
- If you’re an individual, you may incur a penalty of up to EUR15,000.
Duty to perform
You’re 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.
You must approve an order cancellation request and reimburse your client if they change their mind and return the product within 14 days from the delivery date.
You must register and be listed in the “registre du commerce et des sociétés”, which is the French division of corporations’ directory.
Penalty: if you’re not compliant, you may be subject to administrative and criminal penalties.
Do you fall under the new guideline if you’re not in France?
Regardless of where you live, you fall under the social media influencers and content creators bill of rights if you’re targeting a French audience.
Designation of a representative in Europe
If you’re not domiciled in the European territory but are targeting a French audience, you must designate a representative in Europe to guaranty the conformity of their contract to French law and respond to French authorities’ inquiries.
Subscription of a general liability insurance in the European Union
If you’re not domiciled or located in the European Union, the Swiss Confederation, or the European Economic Area, you must have a general liability insurance coverage regardless of how you’re doing business.
Social media platform operators
You’ll be held accountable if you’ve been notified of contents that are not compliant with the bill of rights and you don’t take any action.
Some 150,000 influencers and content creators call France home. They’re 30 years old on average and are mostly women (74%). They influence social media users’ opinions and desires and engage millions of people. An estimated 4 billion people use social media for about 2 and half hours per day. About 4 companies out of 5 have a content marketing strategy. And they want to be present on the four main content marketing platforms: YouTube, Instagram, TikTok et Twitch. In 2022, the influencer marketing market was estimated at $16.4 billion. And 87% of buyers said that they’ve been convinced by an influencer to buy a product or a service.