The influencers' law put to the test of European law: draft compliance order.

On July 4, 2024, the notification to the European Commission of a draft ordinance aiming to adapt Law No. 2023-451 of June 9, 2023, marks a significant step in regulating commercial influence in France.

After facing criticism from the Commission, the government decided to take control and conform the text, under Article 3 of Law No. 2024-364 of April 22, 2024 (DDADUE \\ [1\")\\]).

This legislative evolution, far from being a mere formality, reveals the complexity of the interplay between national and European law in the digital domain.

I. Territoriality clarified through the European lens.

The major contribution of this draft ordinance lies in clarifying the territorial scope of the Law of June 9, 2023 \\ [2\")\\]).

While the fundamental definition of commercial influence remains unchanged, the ordinance introduces a crucial distinction between actors based on their place of establishment.

The law will now explicitly apply to influencers established in France or outside the European Economic Area (EEA), while providing for a specific regime for operators established in other EEA member states.

This differentiated territorial approach is consistent with the logic of the European Digital Single Market, particularly respecting the principles of the e-commerce directive \\ [3\")\\] and the Audiovisual Media Services directive \\ [4\")\\]).

II. Controlled easing of transparency obligations.

Another notable development concerns the overhaul of Article 5 of the "_influencers_" law, with the removal of the obligation to specifically use the mentions "_advertising_" or "_commercial collaboration_."

This modification is however accompanied by strict supervision, the ordinance now explicitly qualifying as a deceptive commercial practice within the meaning of Article L121-3 of the Consumer Code the absence of a clear indication of commercial intent.

This approach, more flexible in form but maintaining a substantive requirement, aligns with European case law on unfair commercial practices.

III. What this draft ordinance does not address.

Certain points of the "_influencers_" law are however not addressed by the draft ordinance.

One might have thought, first of all, that the very definition of commercial influence could have evolved.

Indeed, the notion of "_notoriety_" within the meaning of Article 1 of the "_influencers_" law remains rather imprecise and subject to debate.

Regarding the prohibitions of products and services provided for in Article 4, an update would be welcome, particularly concerning the problematic training courses that are currently proliferating on social networks.

Nothing either regarding the joint and several liability between agents, content creators, and advertisers. This joint liability is practically difficult to implement, and doubt persists today as to the possibility of contractually derogating from it.

Finally, the question of in-kind benefits remains pending, particularly regarding the contractual aspect, for which an implementing decree has been awaited for over a year.

Conclusion.

The notification of this draft ordinance to the European Commission marks a pivotal stage in the evolution of commercial influence regulation in France. While the Law of June 9, 2023, laid the foundations for ambitious regulation of this rapidly expanding sector, its adaptation to the European legal framework reveals the full complexity of effective regulation in the cross-border digital space.

The balance found by the ordinance is subtle: on the one hand, it preserves the protective essence of French law, particularly through the maintenance of contractual obligations, joint and several liability, and sectoral prohibitions; on the other hand, it introduces necessary flexibility in its territorial application and in the modalities of commercial transparency, thus respecting the requirements of the European Digital Single Market.