(Tribune) “Influencer, model in spite of himself?”

At a time when the first law on influencers has been adopted, how can brands contractually regulate their business relationships with these new players, facing the risk of reclassification as an employment contract based on the presumption of employment attached to the modeling?

On June 9, 2023, a law was adopted aimed at regulating the activity of influencers. The first of its kind, it defines these digital players as “ natural or legal persons who, for a fee, mobilize their notoriety among their audience to communicate to the public, by electronic means, content aimed at promoting, directly or indirectly, goods, services or any cause “. This law aims to regulate the activity of these new digital players, to which it applies some of the rules governing advertising. She prohibits the promotion, by influencers, of certain products and services, for example in the field of medicine or finance, and still regulates the contracts they conclude, in particular with their agents. More generally, this law aims to make influencers responsible in their professional promotional communication activity.

A possible confusion between the status of influencer and that of model

Nevertheless, certain aspects of this activity, although linked to the promotion of products and/or services, have been forgotten by this law. This is particularly the case of the possible confusion between the status of influencer and that of model. It would indeed have been appreciable if the legislator had taken a position on this question. Indeed, modeling is legally defined by the Labor Code as the activity of direct or indirect presentation to the public of products, services or advertising messages, by reproduction of one’s image on any visual or audiovisual medium, or by the activity of poses as a model, with or without subsequent use of his image.

The Labor Code further specifies that any contract by which a “ person » ensures, for remuneration, the competition of a model is presumed to be an employment contract. This person can be a modeling agency, or the advertiser themselves.

Read also: Parliament adopts law governing commercial influence

In recent years, the status of model has been the subject of a particularly extensive jurisprudential interpretation since the Court of Cassation was able to apply it to professional athletes, in several judgments rendered in 2021 and 2022. In two recent decisions, the High Court has in fact considered that professional athletes, responsible, under a sponsorship contract, for wearing clothing or equipment bearing the brand of their sponsor during the practice of their sporting activity (during training and competition), were to be considered as models. Consequently, the sponsorship contract was presumed to be an employment contract, and the financial compensation paid in this respect by the sponsor had to be subject to URSSAF contributions.

Such an application of the notion of mannequin to the activity of athletes seems to us to be criticizable, to say the least. The heart of the athlete’s activity consists in practicing his sport and participating in competitions, and not in promoting the equipment that he can wear in this context, for the exercise of his sport. Her main activity, strictly speaking, is therefore significantly different from that of the model.

A reclassification of the employment contract?

But then, what about the influencer? Depending on the profile, its main activity can either consist of promoting third party products or services, in return for payment of compensation, or truly creating original content excluded from any notion of promotion, using more “placement of product”, its notoriety being the means of reaching a large audience. On this basis, is the contract concluded with a brand, which it will present directly or not, systematically condemned to be reclassified as an employment contract on the basis of the presumption of employment attached to modeling?

At present, the question must be asked because the risk of requalification seems high, particularly through the prism of the notion of modeling. However, limiting the influencer’s activity to an act of promotion seems reductive to us. The influencer, like the athlete, is much more than a sandwich man. In his communication, even made in favor of the products or services of a third party, and for consideration, he always brings his personal or even artistic touch, adapted to his community, which distances him even further from a service governed by a strict specifications, or precise instructions from a principal exercising a relationship of subordination. More than an advertiser, the influencer is a true content creator.

In any case, the choice, for a brand, to call on an influencer, will suppose to take precautions in drafting the contract with the latter. Particular attention must first be paid to the legal form adopted by the influencer, as a co-contractor, and to their way of communicating. The choice of contractual vocabulary is just as important, the great freedom of the influencer in his communication must thus be preserved, in order to avoid any element likely to favor the qualification of a link of subordination between the influencer and the brand, element key to the employment contract. The type of remuneration, whatever it may be, must still be considered carefully, in order to move as far away as possible from a notion of salary, specific to employees, a particularly difficult task on this point, as the text on the models is so favorable to salaried employment. Finally, even more so in the context of the execution of the contract in particular, it will be necessary to avoid any sign of belonging of the influencer to the company or to an organized service of the latter.

Read also: Bercy unveils its measures to regulate commercial influence

In short, even if the markers of the independence of the influencer in the execution of the service will make it possible to best combat the risk of reclassification into an employment contract based on modeling, the absence of a position taken by the legislator on this question is likely to make this fight perilous and somewhat uncertain as to its outcome.