"Influencers Act" in France: a new insurance obligation
21 June 2023 21 June 2023
The French "Influencers Act" of 9 June 2023 creates a new insurance obligation.
Unanimously adopted, the French Act of 9 June 2023 n°2023-451 aiming to regulate commercial influence and combat misconduct by influencers on social networks ("the Influencers Act") creates a new insurance obligation in its Article 9:
- The insurance obligation applies exclusively to influencers based in countries outside the European Economic Area or Switzerland.
- Insurance is required if the influencer's activity is targeted, even incidentally, at a public established on the French territory.
- The insurance policy must be taken out with an insurer established in the European Union.
- This insurance must cover the financial consequences of the influencer's professional civil liability.
Influencers established outside the European Economic Area or Switzerland must also appoint a legal representative based in the European Union.
This insurance obligation raises a number of questions. If influencers are located outside the European Economic Area, will insurers have the necessary license to insure their professional civil liability? Which governing law will be applicable, that of the influencer's usual place of residence?
In addition, the Act provides a definition of the concept of "influencer" and an obligation for influencers, their agents and advertisers to conclude written contracts once a certain threshold of remuneration or benefits in kind has been exceeded. A principle of joint and several liability between the influencers, their agent and the advertiser has been introduced.
Certain types of advertising are now prohibited, such as the promotion of surgery, cosmetic medicine or certain financial services.
Furthermore, the Act includes specific measures to protect child influencers.
Any violation of these prohibitions is punished by imprisonment and a fine.
Moreover, the obligations of online platforms have been strengthened and better information for subscribers has been introduced, with the clear indication of the words "advertising" or "commercial collaboration" on promotional content.