Affiliate marketing techniques
4
April
2024

Affiliation regulations: understanding the laws you need to respect as a content creator

Driven by steady growth year on year, affiliation is attracting more and more interest. Until now, the sector has been self-disciplined, but as the number of players has multiplied, less rigorous practices have emerged, particularly with the growing number of influencers on social networks. The relevant authorities have therefore legislated to ensure that the public is not misled by the communication, online advertising, affiliation or activity of influencers. Let's take a look at the various legal obligations that need to be respected.

Who's considered an influencer?

An influencer is anyone who promotes a product or service to his or her community on social networks in return for financial or in-kind compensation. It's important to note that a website that uses its Facebook page for sponsored publications is subject to the same obligations as influencers.

💡Do you want to start a negotiation with an advertiser? To ensure its reliability, the law for confidence in the digital economy (LCEN) has been created. In particular, it obliges companies to display their head office address, e-mail address and telephone number on their website.
Instagram page of an influencer agency
The Instagram page of communications agency Shauna Events is renowned for its collaboration with many influencers.

The need for transparency as a content creator

If you're a regular reader of our articles, you'll already know that Affilizz advocates transparency in the field of affiliation vis-à-vis your readers and followers. By communicating in an educational way on this subject, the message you convey about affiliation helps to reinforce the credibility of all influencers, as well as that of your business. Creating content is a discipline in its own right.

Furthermore, the law is categorical when it comes to misleading and unfair advertising practices: they are formally prohibited. So, when you present a product, brand or service, you are obliged to indicate in your content whether it is the subject of a partnership or affiliation. This obligation applies to both written and video articles.

On social networks, simply adding the hashtags #ad and #sp isn't enough; mentions of partnerships must be explicit.

💡 59% of companies use influencers to promote their products or services as part of marketing partnerships(Source: Kinsta).

It's also your responsibility to spot partnership requests that could harm you or your community.

Finally, even if your partner's activity is legal, it's up to you to check that the terms of the partnership comply with the law, and if necessary to consult the relevant authorities. Many products and services are subject to specific obligations in terms of marketing communications.

Regulated products

As an influencer, if you're targeting a French audience, it's imperative to know that promoting any product or service is not allowed. French law strictly regulates advertising and marketing in certain sectors:

  • Medicines : Drug advertising is subject to guidelines issued by the French National Agency for the Safety of Medicines and Health Products (ANSM) and the French Public Health Code. If you have any doubts about a product, don't hesitate to contact them.
  • Online gambling: Since 2020, the Autorité Nationale des Jeux and Le Code de la Sécurité Intérieure have regulated online gambling and its promotion. Sports betting and poker are authorized, while online casinos remain prohibited. Since 2010, advertisements have been required to include a prevention message (" Gambling carries risks...") followed by the telephone number of a gambling helpline. Since 2020, online gaming operators have been required to have their annual promotional strategy validated by the ANJ, indicating the media used, promotional vectors, detailed budget estimates and target descriptions for the various games promoted. (Source : Droit de la Com)
Screenshot Winamax website
On the Winamax website, the compulsory top banner is a permanent reminder of the risks associated with online betting.
  • Stock market : In 2016, the Sapin II law was passed, introducing strict regulations on the advertising of stock market products. The promotion of the riskiest products is now prohibited in France. These products include binary options, CFDs and financial contracts on currencies, also known as "Forex" (Source: Autorité de Régulation des Marchés Financiers)
  • Cryptocurrencies : as of March 2023, influencers may not advertise cryptocurrencies. Only players who hold PSAN (service providers on digital assets) approval issued by the Autorité des marchés financiers (AMF) can use influencers to promote them. (Source : Le Figaro)
  • Alcohol : Alcohol advertising is permitted on the Internet, but is subject to a number of rules. Under the French Evin law (Code de la santé publique), all advertising for alcoholic products must include the statement: "Alcohol abuse is dangerous for your health, consume in moderation." This applies to influencer publications on social networks. In addition, the promotion of alcoholic products should normally only include objective information about the product: alcohol content, origin, composition, etc. A content creator on social networks must therefore not present the product in an attractive frame, but a certain legal vagueness persists.
  • Tobacco : Tobacco advertising is generally prohibited in France under the Evin law (Public Health Code), but remains authorized "for publications and Internet sites hosted outside the European Union and mainly not intended for the Community market". (Source: Comité National contre le Tabagisme)
  • Firearms: Advertising firearms is strictly regulated in France, but is still possible in the context of hunting, fishing and shooting sports. For full details of the conditions required, please refer to this CPPAP page.

What's the law for influencers when it comes to content creation?

Laws regarding influencers and content creation can vary from country to country. However, there are generally a few key areas that influencers need to pay attention to when creating and publishing online content and doing affiliate marketing.

As the law changes frequently, don't hesitate to consult a lawyer and official sources for legal advice specific to your situation and the law of the country you're in.

  1. Transparency and disclosure: In many countries, influencers are required to disclose paid partnerships, affiliation, gifts or any other commercial arrangement in their publications. This means that if an influencer is paid to promote a product or services, they must clearly disclose this commercial relationship to their audience.
  2. Copyright and image rights: Influencers must respect copyright and obtain permission from the people whose images or content they use in their publications, unless these elements are in the public domain or are used in accordance with the law.
  3. Offensive or illegal content: The creation of defamatory, hateful, illegal or offensive content may result in legal action. Defamation and hate laws vary from country to country, but legal responsibility may rest with the influencer.
  4. Advertising and sponsorship: If an influencer promotes a product or service, he or she may be subject to specific obligations governing advertising, such as laws on misleading advertising.
  5. Data protection: Influencers must also comply with data protection laws, especially if they collect personal data from their subscribers or use cookies on their website.
  6. Liability for subscriber content: If influencers allow subscribers to comment or post content on their platforms, they may be held liable for defamatory or illegal content posted by other users, depending on the laws of their country.
  7. Platform-specific regulations: Social networks and online content platforms may have their own rules and policies with which influencers must comply. Failure to comply with these rules may result in sanctions such as account suspension.

The laws regarding influencers and content creation can be complex and vary considerably depending on the jurisdiction. Influencers need to be aware of these laws, remain transparent in their business activities, obtain the necessary permissions and create legally compliant content to avoid potential legal issues. It is highly recommended to consult a lawyer specializing in social media and digital law for specific legal advice.

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Key points to remember
  • Ignoring the law exposes you to penalties.
  • Opting for transparency as a content creator is advantageous for boosting your credibility and that of your community.
  • Many products and services are subject to specific advertising, communication and affiliation requirements.
Conclusion

The legal framework for affiliation has existed for many years, and continues to adapt as the concept becomes more popular via social networks. By respecting the law and being transparent with your community, you build trust in yourself and your content. So it's in your best interest to create content that complies with the law, guaranteeing the longevity of your business. Would you like to go further in your understanding of the laws for influencers? Take a look at these articles:

About the author
Vincent Alzieu
General Manager

After successfully managing several companies in the tech world (Les Numériques, Doctissimo, Au Féminin...), Vincent Alzieu joined Affilizz as late co-founder in 2022 to bring his experience of media and affiliation.‍

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