NEWSLETTER No 39 // Thursday 26 October 2023 |
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Data at the heart of influence! |
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This month, La Lettre du DPO interviewed Valérie Revol (Category Sourcing Manager Marketing/Communication at LVMH) and Léa Coffrant (content creator entrepreneur). They provide La Lettre du DPO with their respective views on the vigilance required when engaging in, or using, the e-business of influencer marketing (the players of which are commonly known as “influencers”). This activity, which is now clearly defined by law, is carried out by people who, “against payment, use their reputation among their followers to communicate to the public, by electronic means, content with a view to promoting, directly or indirectly, goods, services or any cause whatsoever”.
A very recent law in response to the excesses of certain influencers. France now has 150 000 influencers, many of whom are followed by millions of people on platforms such as Instagram, TikTok or Snapchat, and particularly by young people, many of them minors. The rise of influencers on social networks has led to a series of abuses, of which there are countless examples: promotion of cancer “medication”, promotion of products sold for several euros that can be found for just a few pennies on well-known websites (a scam that abuses the direct sales technique better known as “dropshipping”), enrolment in medical or beauty training courses in Mexico, abuse of the personal training account (CPF), subscriptions to bogus sports predictions, products bought and paid for but never delivered, and so on. In light of this reality, the French law no. 2023-451 of 9 June 2023 "aimed at regulating influencer marketing and combating abuses by influencers on social networks" has been enacted. Most of its provisions came into force on 11 June 2023 in order to hold accountable all influencers, their agencies, advertisers and distribution platforms, and, where appropriate, penalise them, thereby strengthening the protection of users of social networks and consumers. In practice, this law stipulates that influencers are advertisers like any others, to whom, in addition to the provisions governing the promotion of goods and services online, a specific prohibition regime applies, as well as an obligation to provide information on the promotional nature of the content they promote or the changes they make thereto, a duty to appoint a representative within the European Union and to take out professional insurance.
A little-known reality: influencers themselves are victims of abuse. From attempts at intimidation (disclosure of address, threats, false information), to the outright cyber-harassment of certain subscribers, influencers can also be the victims of reprehensible behaviour, insofar as their activity leads them to expose their private lives in ever more extreme ways in order to increase their audience. The existing framework recalled by the members of Parliament when drafting the aforementioned law (“procedures for reporting accounts, internal rules for platforms and the law”), which does not include any specific provisions on this point, is often ineffective in prosecuting the malicious perpetrators of these practices, particularly when the latter create false online identities and it becomes difficult, even impossible, to identify them. .
Respecting subscriber data: a key point to be mastered. Influencers process a large volume of personal data from their “community”, both knowingly (for example, when organising competitions on behalf of advertisers) and sometimes unknowingly (for example, by publicly sharing on their networks private messages received by some of their subscribers, thereby transmitting the latter’s data, in contravention of the regulations in force (GDPR, etc.). Like all professionals in the digital space, influencers must not lose sight of these regulations and must ensure, either on their own or contractually, with advertisers that the processing carried out as part of their activity is properly supervised.
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“The Law of 9 June 2023, aimed at regulating influencer marketing and combating abuses by influencers on social networks, is welcome even if to a certain extent it has arrived a little late in respect of such abuses” |
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Valérie Revol, currently Category Sourcing Manager Marketing/Communication at LVMH, has worked for the French luxury goods group for 25 years. For La Lettre du DPO, she looks back at her career in detail and shares her views on the subject of influencer marketing.
For La Lettre du DPO, she looks back on her career in detail and shares her views on the subject of whistleblowers (and the processing of their data) within organisations.
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1/- What is your background ?
I have a master’s degree in LEA (Applied Foreign Languages) and training in export. I got into the purchasing sector by chance. I have been working for the LVMH group for 25 years. I spent 14 years at Chaumet, notably as Head of Non-Production Purchasing, then 6 years at Louis Vuitton as Head of Indirect Purchasing. At Louis Vuitton, I set up the Purchasing Marketing & Communication department within a Purchasing division that included different areas of expertise. There was a transport expert, an IT expert, and so on. For my part, I was in charge of the Marketing and Communications department, which covered quite a wide range of areas, including image, events and digital technology. I then moved on to the holding company where I broadened my scope to include visual merchandising, packaging and customer experience.
At the time, we noticed that houses like Chaumet, which had a lower turnover than houses like Louis Vuitton, were nevertheless using the same partners and suppliers. That is why we set up the Marketing and Communications department at the holding company level, to map and reference the best suppliers/partners to support our houses in their marketing activities.
2/- What are your current responsibilities and how do you work with influencers?
I have been Category Sourcing Manager Marketing/Communication at LVMH since 2017. Overall, I work with the Purchasing communications departments of different types of houses or directly with the communication departments if they do not have a Purchasing department. We work with several categories of influencers. First of all, the ‘biggest influencers’, who are akin to celebrities and who can be muses of brands, like the Italian influencer Chiara Ferragni. Their contractual and financial information is subject to the strictest confidentiality. We also work with ‘micro-influencers’, who mainly work for perfume and cosmetics brands. These ‘micro-influencers’ are most often recruited, managed and supervised by external service providers. Influencers have forced press relations agencies to evolve and steer a whole new course. Since 2015, influencers have taken the place of journalists, particularly in the front rows of fashion shows. Previously organising press trips, communication departments now organise influencer trips. Contrary to popular belief, influencers are real professionals and do real work. They arrive early and are constantly on the lookout for the best spot to take the best photograph to post. They also have to manage their follower count. Influencers have become very powerful, with some of them now more powerful than certain of our brands. In these circumstances, influencer posts make it possible to reach a much wider audience.
3/- How do you see the future of influencer marketing?
There has been a paradigm shift. We have gone from a system in which luxury houses were the winners to a system in which brands must, to some degree, court influencers so that they will promote their products, with an impact that may be out of all proportion with the purchase of a page of advertising. That said, influencer marketing has not replaced traditional advertising; the two are complementary. Only a few years ago, the level of power of influencer marketing was not measured and there were fewer communication media, so it was easier for a brand to control the channels through which its advertising campaigns were distributed. In this era of influencers, communication media have multiplied. This makes it more difficult than before to control brand image, which may be exposed to risks. Against this backdrop, the Law of 9 June 2023, aimed at regulating influencer marketing and combating abuses by influencers on social networks, is welcome even if to a certain extent it has arrived a little late in respect of such abuses. These abuses are likely to increase with the use of artificial intelligence in the context of content creation. |
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An important role for each of the players in the influencer marketing chain |
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Léa Coffrant, known under the pseudonym JeNeSuisPasJolie, became a content creator on the YouTube platform in 2010, at a time when influencer marketing was not yet structured, let alone considered a profession. Now with more than 900 000 followers on Instagram and 1 million on YouTube, Léa Coffrant, who is also an entrepreneur at the head of the e-commerce site ‘Cracotte Shop’ (responsible products for the home and personal care) and the podcast ‘Take Kare’ (personal development), agreed to share her views with La Lettre du DPO on the impact of the recent law on her e-business of influencer marketing.
The new law has the merit of harmonising the multiple practices observed in terms of transparency
“The Law of 9 June 2023 aimed at regulating influencer marketing and combating abuses by influencers on social networks has made it possible to put an end to the irresponsible and sometimes even dangerous behaviour that the French legislature has allowed to emerge in recent years, due to its lack of interest in this activity. These abuses, carried out by a very specific part of the players in influencer marketing, largely developed when it became possible to monetise a collaboration with an advertiser. This law will thus force the perpetrators of such abuses to reinvent the way they carry on business. For the others, already aware of the existing legislative arsenal, the essential contribution of this text is the harmonisation of practices observed to ensure compliance with the obligation of transparency visàvis users, and in particular the choice of terms used (“advertising” or “commercial collaboration”) to promote an advertiser’s products and/or services. With regard in particular to the negotiation of influencer marketing contracts, this new law may cause concern for intermediaries (agents of influencers and advertisers), as it places on them a responsibility that was previously borne primarily by the influencer. However, these intermediaries must be aware that the purpose of such a contract is to provide a framework for “commercial collaboration” between two companies, and that it is therefore counterproductive to impose general terms and conditions of purchase on an influencer when most of the clauses are unbalanced or even totally unenforceable in practice. ”
Advertisers have an important role to play in the fight against cyberbullying
“The protection of the data and privacy of influencers has been completely excluded from the law. However, existing regulations already make it possible to protect users’ personal data and privacy when they are processed in the context of commercial collaboration. For example, in the context of a competition, responsibility for processing should lie with the influencer who, being in direct contact with his/her subscribers, can more easily inform them directly of the processing carried out, obtain their consent, and delete the data collected - which is never transmitted to the advertiser at the end of the prize draw. More generally, seasoned influencers know that they should never ‘re-share’ in plain text any information that enables direct identification (surname, first name, pseudonym) or indirect identification (location and physical characteristics communicated in a private message, for example) without the subscriber’s express consent. Conversely, in recent years it has become abundantly clear that the existing legal arsenal is inadequate to combat the cyberbullying suffered by certain influencers, which also has a knock-on effect on the image of advertisers and impacts on the collaboration they have financed. However, advertisers have an essential role to play in stemming the spread of a wave of hatred, by moderating the comments of cyberbullies as soon as the latter publish content produced with an influencer who is commonly a victim of cyberbullying, since far from communicating a constructive opinion on a promoted product, cyberbullies are only interested in being seen and creating a mass effect, and become discouraged when they realise that they are failing to achieve the desired effect. ” |
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Parental control of connected devices: the need to set up blocking functions before abuses can take place |
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At a time when influencer abuses are at last being regulated, decree n° 2023-588 implementing article 1 of law n° 2022-300 of 2 March 2022 aimed at strengthening parental control over Internet access methods, published in the Official Journal on 11 July 2023, will, as of July 2024, oblige manufacturers of connected devices to install by default a tool enabling parental control that is accessible and free of charge, and that can be activated upon first use of the device. On 9 March 2023, the French Data Protection Authority (CNIL) issued its opinion on the draft decrees for implementing this law, which specify the practical means to be used to integrate parental control into connected devices. Among the functions proposed, the decree mentions blocking downloads of content made available (in other words, mobile applications) - from social networks for example, where influencers operate, leading in particular to the creation of a new article R. 20-29-10-1 in the French Post and Electronic Communications Code (CPCE). The CNIL reiterates, however, the need to strike a balance between parental control and respect for minors’ privacy, and in particular that minors’ personal data collected or generated when the device is activated may not be used for commercial purposes, on pain of an administrative fine for the manufacturers in question. |
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French subsidiary SAF LOGISTICS fined by the CNIL |
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On 18 September 2023, the French air freight company SAF LOGISTICS was fined €200 000 by the CNIL for processing data collected via a form sent to employees wishing to apply for a position in China in order to feed its internal database.
With regard to SAF LOGISTICS’ classification as data controller, the CNIL points out that it is SAF LOGISTICS that requests the form from its Chinese parent company SINOTRANS HONGFENG SHANGHAI LIMITED, which draws it up, in order to distribute it to the other employees who are Chinese nationals living and working in France and whose employment contracts are subject to French law.
SAF LOGISTICS therefore processes part of the data provided for a purpose determined by the company and specific to its needs, i.e. to enable it to contact employees’ relatives or identify employees wishing to leave for China.
In accordance with the guidelines of the European Data Protection Board (EDPB) of 7 July 2021, the CNIL considers that it is indeed SAF LOGISTICS that defines the purposes (to identify employees wishing to leave for China) and the means (by obtaining the form from the parent company) of the processing.
Firstly, SAF LOGISTICS was accused of collecting excessive amounts of data - including sensitive data such as blood group or political affiliation - in the context of recruiting its employees, resulting in an infringement of their privacy (such as the collection of information relating to the employees’ entourage in order to circulate it to other employees), as well as unauthorised storage of extracts from the criminal records of employees working in air freight.
Secondly, SAF LOGISTICS was fined for failing to cooperate with the CNIL due to incomplete translations of Chinese-language documents submitted as part of the inspection. |
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Proposed law to create a copyright framework for AI: to be continued! |
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On 12 September 2023, in response to the development of generative AI, the French legislator introduced a bill to protect authors and creative and performing artists. Cases involving copyright and generative AI are regularly in the news. In 2016, for example, an AI was able to create a painting called "The Next Rembrandt", using a 3D printer, based on an analysis of thousands of works by the 17th-century Dutch artist. The stylistic similarity to the painter's paintings is striking. On a different note, several authors have recently brought legal actions against ChatGPT, claiming that the use of their work to train its AI systems and then create content violates their rights. The aim of the proposed law is therefore to strictly control the creation and exploitation of AI creations in order to guarantee fair remuneration for authors whose works have been used. To achieve this goal, articles L131-3 and L321-2 of the French Intellectual Property Code will be notably amended. Authors will be required to give prior authorisation for the use of their works by an AI and will benefit from ownership of the rights to AI creations generated without human intervention based on their works.
To find out more, click here
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Thursday, November 23, 2023 |
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Cocktail "Commercial influence: what framework for what excesses?" |
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The lawfirm klein • wenner is organizing a presentation, followed by a cocktail party. Influencers, advertisers, and agencies will be invited. Will be presented the new obligations imposed by the June 9, 2023, law which imposes joint and several liability to the latter towards social network users. The event will also provide an opportunity to remind participants of the existing legal arsenal, which knowledge permits to be protected against legal action initiated by users who are victims of abuse and to identify and sue the latter when they are themselves the perpetrators of abuse that convey waves of hatred, hidden behind false digital identities.
You can register for the event here |
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The Intellectual Property and Digital Law Team at klein • wenner
Fortified by in-depth experience, klein • wenner's attorneys in the Intellectual Property and Digital Law Team, who are experts in the digital sector and in GDPR, have developed a transversal practice unique in the area of data law. We work with other experts (in cybersecurity, SI/data governance and other areas), and our team offers a global, cooperative approach to all issues relating to data (privacy, intellectual property, cybersecurity and open data - *with klein • wenner's Public Law team).
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La Lettre du DPO is a publication of klein • wenner which processes your data in accordance with the regulation regarding personal data. To learn more, click here
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