Source: Leaders League(more…)
Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act) (Text with EEA relevance) The European Parliament and the Council of the European UnionSeptember 14th, 2022 | Posted by Claude-Etienne Armingaud in Competition | English | Europe | internet | IT | Legislation | Marketing | Privacy | Social Networks - (0 Comments)
Read the full text.(more…)
Following the positions expressed by the Austrian, German and French Supervisory Authorities (see our previous Alert), the Italian Supervisory Authority (Garante per la Protezione dei Dati Personali, Garante-) published on 9 June 2022 a specific measure, according to which website analytics solutions used to measure online audience (Analytics Service Solutions) infringe on the EU General Data Protection Regulation no. 2016/679 (GDPR – external source) when such use implies a transfer of personal data to a third country without an adequate level of personal data protection, such as the United States. Generally speaking, the Garante, aligned its position on the matter with its counterparts.(more…)
France: Supervisory Authority Publishes Guidance on the Use of Website Analytics in Compliance With GDPRJune 22nd, 2022 | Posted by Claude-Etienne Armingaud in Data Transfer | Europe | Privacy | Social Networks - (0 Comments)
Following the 2020 Court of Justice of the European Union’s (CJEU) ruling invalidating the Privacy Shield (see our alert here), personal data transfers from the European Union to the United States required EU companies to implement additional safeguard mechanisms, as the CJEU considered that U.S. legislation did not provide sufficient guarantees against the risk of access by public authorities (including intelligence services) to the imported data.(more…)
Over the past decade, influence marketing has changed the way advertising is handled by companies. Influencers have entered the marketing world by leveraging massive followings on social media platforms, and brands have recognized the value of the new category of advertising professionals.
Even though the use of influencers has become a mainstay of advertising, French legislation has yet to meet this evolution, resulting in an often opaque legal framework.
The broad spread-out provisions applicable to influencers also generate difficulties in understanding influencers legal status, in particular when they are underage. This notably raises the question whether influencers are employees of the brands they advertise for—and therefore subject to labor law—or if they should be considered independent contractors, with their relationship with brands subject to commercial legislation.
Such opaque legal framework raises questions about the applicable regime, as well as the legal status of influencers. Even though there is no specific regime for influencers, recent legislation was adopted in order to protect children influencers (see our alert here).(more…)
Ad, Advertisement, advertising, Brand, Campaign, Children, Digital, Employee, Employer, GDPR, General Data Protection Regulation, Influencer, Kidfluencer, labor, Law, marketing, Online Platform, Platform, social media, Underage, Work
Through its Act no.2020-1266 dated 19 October 2020 (the Act), the French legislator elected to regulate the commercial exploitation of the images of children aged 16 and under on online platforms (Kidfluencers).
Despite the potentially lucrative consequences of these emerging practices, Kidfluencers operated in a legal vacuum which could have resulted in parents exploiting their children, without the latter reaping any financial benefits or regaining any control of their images upon coming of age.
First and foremost, the Act extends the existing legal framework of child models, under Article L7124-1 of the French Labor Code (FLC). As such, Kidfluencers will require a written authorization from the French Administration prior to being engaged or broadcasted, inter alia:
- By any entertainment provider, regardless of the medium or broadcast type;
- In order to perform “modeling activities,” broadly defined under Article L7123-2 FLC as presenting oneself, directly or indirectly through the reproduction of one’s image, either through photographs or video, notably by presenting a product, service of commercial message;
- By eSport competition organizers; and
- By “Employer whose activities consist in creating audiovisual recording whose main subject is a child aged 16 or under, for the purpose of for-profit broadcasting on an online video sharing platform”.
The latter category was notably introduced to characterize the parents or legal guardians of the influencers as the “employer” of the Kidfluencer. As they may not be as aware of the legal undertakings as the other providers and organizers mentioned, the Administration will provide them with specific information relating to the Kidfluencers’ rights and the risks associated with exhibiting their image online.
Moreover, a portion of the revenue gained by Kidfluencers would be placed in escrow on a French public bank account until their majority.
Secondly, in situation when the broadcast would not be performed for profit, the Act introduces additional protective measures for Kidfluencers: instead of a prior authorization, a simple declaration of the activity will be required, when the published content exceeds certain thresholds in terms of (i) duration or individual items; or (ii) direct or indirect revenues. Such thresholds will be addressed in a supplemental decree to be adopted shortly.
Failing to obtain the authorization or to proceed with the notification would entitle the Administration to seize a court in order to take down the related content.
Finally, the Act also implements a collaborative framework for the online video sharing platforms, and enjoin them to publish dedicated policies to aiming at
- Informing users of the applicable Kidfluencers’ regulatory framework;
- Informing Kidfluencers directly of the consequences on their private life of the broadcasting of their image, of the legal and psychological consequences and of the means they have to protect their rights and dignity;
- Encouraging users to report any content involving Kidfluencers that could affect their dignity, psychological or physical integrity;
- Preventing the processing of personal data relating to minors for commercial purposes, such as targeted advertisement, further to the broadcasting a Kidfluencers video;
- Detecting situations where the recording or broadcasting of Kidfluencers’ videos could impact their dignity, psychological or physical integrity; and
- Helping Kidfluencers to easily exercise their right to be forgotten on the video-sharing platforms.
While a welcomed step to protect children online, sometimes from their own families, the Act will need to be completed with regard to the thresholds triggering its applicability. In addition, by mainly addressing online video sharing platforms, the Act could have benefited from a more homogenous framework for online platform allowing the sharing of both still and moving pictures. Indeed, while still images could be included in the modeling provision, it remains to be seen how extensively it will be enforced.
Amidst the current discussions surrounding the Digital Services Act at the European level, this France-specific framework creates yet another undertaking for online platforms to implement additional measures to support public policies. And by encouraging users to report any content involving Kidfluencers that could affect their dignity, psychological or physical integrity, the Act could generate extra-territorial consequences, forcing the platforms to deploy such reporting mechanism at a global scale.
K&L Gates IP/IT team in Paris remains available to assist you in assessing the changes triggered by this Act. Please get in touch if you would like to discuss the steps that your organization might want to consider to prepare now for this new Kidfluencer framework.
First publication: K&L Gates Fashion Law Watch
EU Privacy Alert: European Data Protection Board Publishes Guidelines on Targeting of Social Media Users, Emphasizes Joint-Controllership ArrangementsSeptember 29th, 2020 | Posted by Claude-Etienne Armingaud in Europe | Guidelines | Privacy | Social Networks - (0 Comments)
With close to one billion active users on social media, platforms and businesses are constantly rolling out new features, upgrading their ad tools and creating new ways to engage with users, moving away from traditional marketing strategies. Those emerging practices are also extensively relying on data analyses to gain insights and enhance more targeted opportunities, therefore shifting platforms and businesses’ focus on revenue.
The evolution towards increasingly personalized marketing practices occurs in parallel with end-users’ awareness of data protection frameworks, which may lead to a rift between transparency expectations towards complex advertising solutions based not only on personal data provided by the users themselves, but also in conjunction with other data collected by social media providers or third parties. Recent headlines about the roles played by social media targeting on democratic decision-making and electoral processes reinforce such perceptions.(more…)
French Data Protection Authority Releases Position on the Collection of Publicly Available Personal DataJune 1st, 2020 | Posted by Claude-Etienne Armingaud in France | Privacy | Social Networks - (0 Comments)
While privacy concerns associated to the implementation of COVID-19 contact tracing apps across the European Union exist, the French Data Protection Authority (CNIL) also released a position paper on the collection of publicly available personal data for the purpose of direct marketing on 30 April 2020 and following numerous individual complaints. Such complaints notably related to companies automating the collection of telephone and email contact information from individuals, appearing on consumer-to-consumer (C2C) websites (e.g. real estate ads) or from online directories, a practice known as “web scraping”.(more…)
Of the difficulty to frame photograph as a protected work and its consequences on social network.
Two days later, the courts of Paris rendered a judgment (TGI Paris, 3ème chambre, 4ème section, Jugement du 20 décembre 2012 – Philippe G, Alexandra J c./ Paul M. (in French)) which may jeopardize the grievances of the social network users. Indeed, the judges refused to recognize that the airplane photographs take by individuals bore sufficient originality to allow any protection under French intellectual property law.(more…)
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