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What are the rules for digital marketing and influencer partnerships in France and Germany?

Although harmonised at European level, advertising and marketing rules still vary in important respects from country to country, especially when working with an influencer.

In both France and Germany, the advertising nature of any communication must be immediately identifiable, as well as its beneficiary. However, the sanctions are criminal in France (provisions of the Consumer Code), whereas they are civil in German law (Law against unfair competition, UWG).

The particularity of the French advertising regime results from the self-regulation of the sector within the Professional Advertising Regulation Authority, ARPP, a private law association which issues opinions and advice on advertisements before they are broadcast. In Germany, self-regulation of the profession takes place ex post, through damages awarded to competitors when legal advertising rules are violated.
On both sides of the border, this self-regulation is supplemented by administrative supervision when the content is particularly offensive or illegal (CSA in France, Medienanstalten in Germany).

In order to protect the privacy and copyright of the participants, it is not possible to publish their name or a screenshot of their comment if participation in the game is conditional on answering a question, without the winner’s express written consent, which is separate from the simple wish to participate in the competition. The random nature of the game must be clearly stated, in order to avoid having to compensate all participants, especially in France! The methods of the draw are free.

When working with an influencer, it is important to ensure that the influencer remains as free as possible in the way he or she presents the product, and to settle all the issues in a contract.

Moreover, if he expresses himself on the specifics of the product, the company is liable for any lies or inaccuracies. All of the influencer’s publications must explicitly and immediately show their advertising nature and identify the beneficiary.

The contract with the influencer must be carefully drafted to avoid, under the French Labour Code, risking a requalification of the relationship as an employment contract (notably a modelling or author-performer contract).

The whole of digital marketing is therefore subject to numerous, consistent rules, but a deviation from the regulations happens very quickly, and the advice of a legal professional remains the best guarantee of compliance.

Ad fontes, thanks to its proximity to the world of digital start-ups, has built up solid experience in this field, and can, for example, provide support in the drafting of competition conditions, personal data protection notices or contracts with influencers.