Doctrine

Misleading and Comparative Advertising Directive, Article 2

The legal status of the influencer depends on their activity. Their involvement grantsthem rights on the content, on their image and sometimes gives them the protector status of employee.

As regards more precisely the rights on the content, by the interplay of Article 14 of Decree n° 2010-1379 of 12 November 2010 relating to on-demand audiovisual media services and Article 2 of Decree n° 92-280 of 27 March 1992 taken for the application of articles 27 and 33 of law n° 86-1067 of 30 September 1986, "Any form of television message broadcast in return for remuneration or other consideration with a view to promoting the supply of goods or services, including those presented under their generic name, in the course of a commercial, industrial, craft or professional activity, or with a view to ensuring the commercial promotion of a public or private undertaking, constitutes advertising". Directive 2006/114/EC of 12 December 2006 concerning misleading and comparative advertising does establish a sectoral but broader definition, stating in Article 2 that "any form of communication made in the course of a commercial, industrial, craft or professional activity with a view to promoting the supply of goods or services" constitutes advertising. The criterion of promotional purpose is included in the definition of audiovisual commercial communication, established in Article 1.1.h) of Directive 2010/13/EU of 10 March 2010, known as Audiovisual Media Services. Thus, because of the promotion of clothing and accessories, made directly or through product placement, sponsorship or teleshopping, the content ordered by the company is a work commissioned for advertising. The contract of commission for advertising is concluded either between the company, the advertiser, and the influencer, the author of the work or between an advertising agency, used by the advertiser and the influencer.