Marketing agencies and content creators (Instagram, TikTok): respect regulations and stay safe

Influencer marketing has become a daily tool for marketing agencies, social media managers and business leaders, but the legal framework has tightened considerably since the Law of June 9, 2023, known as the “Influencers Act” and the updates of the ARPP recommendations in 2024.

For an agency or a content creator, a poorly structured collaboration with a content creator can engage your responsibility in the same way as that of the influencer, with risks of administrative and criminal sanctions and lasting bad buzz. This article gives you a vision Very operational The legal framework, good contractual practices and possible statuses for content creators, in order to secure your Instagram, TikTok and other social media campaigns.

Why Agencies and Content Creators Need to Secure Their Collaborations with Content Creators

A legal risk now shared between the agency, the brand and the creator

La Law of 9 June 2023 Frames “commercial influence” and consistently aims to empower both influencers and advertisers, i.e. brands and, in practice, their agencies. In the event of deceptive commercial practices, non-compliance with consumer law or the promotion of prohibited services (for example certain speculative financial products), administrative and criminal sanctions may target both the influencer and the client.

In concrete terms, a TikTok story that is not reported as sponsored, presenting a product with misleading claims, can lead to:

• Investigations by the DGCCRF and significant financial sanctions.
• Actions by consumers or associations in civil liability.
• A risk of damage to brand image, which is difficult to repair on social networks.

The explosion of content creators: a business challenge, not just marketing

The creators of Instagram, TikTok, YouTube or Twitch content are no longer just “influencers”, but real business partners who participate in building your brand image. A marketing agency or a company manager that correctly structures these collaborations (contracts, mentions, status of the creator) gives itself a competitive advantage: better predictability, fewer disputes, and strengthened credibility with its own customers.

Conversely, simply exchanging emails or Instagram DMs to organize a partnership exposes you to:

• Disagreements about the volume of content, the duration of the campaign, the remuneration, or the ownership of the videos.
• Difficulties in getting content that is problematic or does not comply with your charter removed.
• The impossibility of proving the obligations of the creator in the event of a dispute.

Influencer, content creator, commercial collaboration: clearly define the concepts

What is the difference between an influencer and a content creator?

The ARPP and the doctrine traditionally distinguish the “influencer” as a person with a significant audience, capable of guiding the behaviors of his audience, in particular through commercial collaborations with brands. The “content creator” is a broader concept, which refers to anyone producing original content (videos, photos, texts, streams) on platforms, with or without advertising; as soon as he is paid (in money or in kind) to promote a product or service, he enters the field of commercial influence.

For a company or an agency, this distinction is especially useful for:

• Adapt the level of contractual requirements (big influencer vs micro-creator).
• Identify whether the relationship is a simple content delivery (creative production) or a real influence campaign (product recommendations to an audience).

What is a commercial collaboration?

The ARPP considers that there is “commercial collaboration” when three cumulative conditions are met: reciprocal commitment, compensation (financial or in kind) and intention to promote a product or service. The influencer law takes up this logic by targeting content in which a creator promotes a good or service in return for an advantage, even if it is only in kind (gifts, trips, free products, etc.).

Concrete example :

• A company sends products to a creator for free, without any compensation required, and the designer freely posts an opinion: this is not in principle a commercial collaboration.
• The same company enters into an agreement (written or even tacit) to obtain 3 stories, 1 Instagram post and 1 promo code in exchange for products: it is a commercial collaboration To be identified as such.

When should commercial collaboration be mentioned?

As soon as there is commercial collaboration within the meaning of ARPP and the influencer law, the creator must make a clear mention of the advertising nature of the communication appear, immediately perceptible to the Internet user. The mentions” Publicity ”,” commercial collaboration ” gold” In partnership with [brand name] ” are considered adequate, as long as they are legitimate, at the beginning of the content and not embedded in the hashtags.

Recommended best practices:

• Text mention visible from the start:” Advertising — Commercial collaboration with [Brand] ”.
• Simultaneous use of platforms' native tools (“Paid Partnership” badge on Instagram, “Advertising” on TikTok, etc.), even if these badges alone are not enough to meet legal obligations.

The New Influencer Law: What Marketing Agencies Absolutely Need to Know

Influencer law and influence marketing in France

Law No. 2023-451 of June 9, 2023 regulates commercial influence in order to combat the excesses of influencers on social networks. In particular, it imposes: the written contracting of relationships between influencers and advertisers or agencies, the obligation to clearly identify commercial collaborations, restrictions on certain products or services, and a reinforced sanctions regime.

For a content creator, a company or a social media agency, this means thoroughly reviewing:

• The models of influence contracts and content services.
• Internal content validation processes (mandatory information, product compliance, consumer law).
• The training of partner teams and creators to these new rules.

Influencers Act 2025: updates and ARPP recommendations

One year after the entry into force of the law, in 2024, the ARPP updated its “Communication of influencers and brands” fact sheet to align it with this new framework and strengthen the educational approach. In particular, this sheet recalls the obligation to immediately identify the advertising nature of the content and offers concrete examples of acceptable mentions, in coordination with the Good Conduct Guide published by Bercy.

Marketing agencies now have an interest in:

• Integrate ARPP recommendations directly into their influencer briefs (examples of mentions, sizes, display times).
• Provide “influencer law + ARPP” checklists for each Instagram/TikTok campaign in order to secure validations before publication.

Penalties in case of non-compliance

In the event of non-compliance with transparency rules (absence of mentions “advertising” or “commercial collaboration”), practices can be qualified as commercial deceptive by omission, with criminal sanctions of up to two years in prison and a fine of 300,000 euros and a fine of 300,000 euros and a fine of 300,000 euros and a fine of 300,000 euros, or even more in proportion to turnover. Administrative sanctions may also be imposed by the DGCCRF, which has shown its vigilance on influential content, in particular in terms of dropshipping, weight loss products or online training.

Beyond the legal sanction, the reputational risk is major:

• Massive bad buzz on social media.
• Breach of contracts with platforms or commercial partners.
• Lasting loss of community trust.

Legal Status and Remuneration of Content Creators

What is the status of a content creator?

The content creator may fall under several statuses depending on the nature of his income (copyright, services, sale of training courses, etc.). The two most frequent statuses in France are the regime of artist-authors (for activities mainly involving the creation of original works) and the micro business (for the provision of services and the more “entrepreneurial” monetization of the audience).

In practice:

• A video maker who produces original content, charging rights on his creations, may fall under the artist-authors regime (URSSAF artists-authors).
• A creator who charges for product promotion, account management or traditional sponsorship services often turns to micro business (BNC or BIC depending on the case).

How do I declare myself as a content creator?

To register, the creator must identify the main nature of his activity and choose the corresponding status, before registering with the competent URSSAF. For a micro-enterprise, the process is done online via the one-stop shop, with obtaining a SIRET number and declaring the turnover, while for an artist-author, registration is done via the URSSAF artists-authors (URSSAF Limousin) with income declaration in BNC.

For agencies, influencers and companies, it is prudent to:

• To systematically request proof of status (SIRET, URSSAF certificate) before contracting.
• To include in the contract a clause by which the creator guarantees to be in compliance with his fiscal and social obligations.

What is the salary for an Instagram content creator?

An Instagram creator's earnings vary greatly depending on their number of followers, engagement rate, niche, and the perceived value of their audience by brands. Market studies show considerable differences, ranging from a few hundred euros per publication for micro-influencers to several tens of thousands of euros for star creators, with in addition to additional income from affiliation, training or the sale of derivative products.

For a society, the issue is not so much the “average wage” as the Economic coherence of collaboration:

• Looking at the budget influences customer lifetime value (LTV) and the target acquisition cost.
• Sometimes prefer several very committed micro-creators rather than a single star that is very expensive but not very aligned with the target.

Contracts between marketing agencies/companies and content creators: secure yourself legally

Influencer law and commercial collaboration: a written contract is mandatory

The Influencer Law Requires the Conclusion of a Written contract between the influencer and his agent and/or the client for any commercial influence operation. This contract must include a certain number of mandatory information, in particular the identification of the parties, the nature of the missions, remuneration, transparency obligations and any restrictions related to content.

For a marketing agency or a company, this means that:

• Campaigns managed “by feeling” by DM or voice messages are no longer possible.
• It is necessary to have Contract templates adapted, adaptable according to the platform (Instagram, TikTok, YouTube, etc.) and the nature of the campaign.

What are the conditions for a well-structured partnership?

A “clean” partnership with a creator must cover at least: the object of the collaboration (influence or simple creation of content), the scope of deliverables, remuneration, mandatory information, intellectual property, intellectual property, intellectual property, intellectual property, intellectual property, intellectual property, property, property, property, confidentiality, confidentiality, duration and termination. The clauses must be adapted to the digital context: ephemeral stories, reuse of content in paid advertising, the possibility of changing briefs during the campaign, etc.

Examples of things to expect:

• Number of contents per platform, formats, publication dates and prior validation procedures.
• Obligation to use the terms “advertising”/“commercial collaboration” and the platforms' native tools.
• Right (or not) for the brand to boost social ad content, with an adapted rights transfer period.

Example of a clause on mandatory information

For example, a clause may take the following form (to be adapted on a case-by-case basis):

“The Creator, for each Publication produced hereunder, to mention in a clear, legible and immediately identifiable manner by any Internet user, the advertising nature of the collaboration, by means of the mention “Advertising” and/or “Commercial Collaboration with [Brand Name]”, at the beginning of the publication or description, as well as by the beginning of the publication or description, as well as by the use of the native devices made available by the platform concerned (such as the “Paid Partnership” label, “Advertising”, “Advertising” or any equivalent). The Creator guarantees that these mentions will remain visible for as long as the Publication is accessible.”

This clause can be supplemented by:

• An obligation to keep content and statistics for a certain period of time.
• An ability for the brand to require the correction or removal of any content that does not comply with regulations or its ethical charter.

Customer's obligation to collaborate (company/brand)

The customer (brand or company) also has an obligation of loyal collaboration in the execution of the contract, which can be usefully formalized. In particular, it must provide accurate information on products or services, confirm their compliance with applicable regulations (for example in the areas of health, finance, gambling) and validate content within consistent deadlines.

A clause may provide that:

• The brand guarantees the conformity of its products/services and strives to indemnify the creator in the event of a penalty related to false information provided by it.
• The brand attempted to validate or request changes within a specified period of time, otherwise the creator may publish based on the latest version submitted.

Content, transparency and “golden business rules” on social networks

Golden Business Rules on Social Networks for Agencies and Companies

For a marketing agency or a company, respect a few Golden Rules Makes it possible to reconcile business performance and legal security. These rules include: the transparency of partnerships, the compliance of messages with consumer law, the protection of personal data (RGPD) and vigilance over the brand image associated with the creator.

Best practices:

• Always require the use of native mentions and tools (“Paid Partnership”, “Advertising”, etc.).
• Contractually prohibits misleading claims (promises of guaranteed results, unauthorized health claims...).
• Provide a crisis management procedure in case of bad buzz or a slippage by the creator.

Platforms: Instagram, TikTok, and native tools

The main platforms have developed native tools to identify sponsored content: “Paid Partnership” label on Instagram, “Includes a paid promotion” box on YouTube, “Advertising” badge via the “Branded Content” tool on TikTok. These tools facilitate transparency, but do not exempt the creator from incidentally mentioning collaboration in the text and, where appropriate, orally.

It is recommended to provide contractually that the creator:

• Systematically activate these options when they are available on the platform.
• Also mention the partnership in the caption, with clear and unambiguous terms, avoiding vague formulations such as “thanks to” or “in partnership with my friends from...”.

Data, RGPD and tracking

As soon as the influence campaign involves performance monitoring (UTM, tracking, tracking, tracking, cookies, cookies, promo codes, email collection via contests, etc.), the obligations resulting from the GDPR and electronic prospecting law apply. In particular, the brand and the agency must inform Internet users of the cookies or trackers used, collect consent when necessary and contractually supervise the flow of data (for example between the agency, the brand and the creator).

To be secure:

• Provide in contracts that the creator does not directly collect personal data on his own behalf, unless specifically supervised.
• Update brand privacy policies to integrate influencer campaigns and tracking tools used.

Practical box: contractual checklist table for commercial collaboration

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FAQ — Marketing agencies, content creators and influencer law

What is the difference between an influencer and a content creator?

An influencer is a content creator with a significant audience and who exerts an influence on the consumer behavior of his audience, in particular by promoting products or services. The content creator, in the broad sense, can produce content without necessarily carrying out commercial collaborations; as soon as he is paid (in money or in kind) to promote a brand, he enters the field of commercial influence and therefore into that of the law influencers.

What is the new law on influencers?

Law No. 2023-451 of June 9, 2023 regulates commercial influence and fights against the excesses of influencers on social networks. In particular, it imposes the conclusion of written contracts, the obligation of transparency on commercial collaborations, sectoral restrictions (for example for certain financial or medical products) and a reinforced sanctions regime in case of deceptive practices.

What is the status of a content creator?

The status depends on the nature of the income and the organization of the activity: artist-authors For income mainly from original creations, micro business for services or sponsoring, or even a company (SASU, EURL, etc.) for a structured activity. The choice of status has consequences in terms of social security contributions, taxation and social protection, and should be considered in conjunction with legal advice and/or a chartered accountant.

What is the salary for an Instagram content creator?

There is no “standard salary” for an Instagram creator; market studies report very variable remuneration, ranging from a few hundred euros per post for micro-influencers to several tens of thousands of euros for major accounts. In addition to these amounts, additional income from membership, product sales, or training is often added, so the overall revenue depends as much on monetization as on audience size.

How do I declare myself as a content creator?

To register, the creator must identify the main nature of his activity (artistic, service provision, sale of products) and then carry out the corresponding procedures (declaration of activity of artist-authors with the URSSAF artist-authors, or registration as a micro-enterprise/company via the one-stop shop). Once registered, he will have to invoice his services (or transfer his copyright) and declare his income to the competent social and fiscal bodies.

Influencer law and commercial collaboration: what is commercial collaboration?

Commercial collaboration is characterized when content is produced through mutual commitments, the creator receives compensation (monetary or in kind) and the content aims to promote a product or service. In this case, the content must be identified as “advertising” or “commercial collaboration”, with clear and immediate mentions for the user.

When should commercial collaboration be mentioned?

The mention is mandatory as soon as there is commercial collaboration within the meaning of the law and the recommendations of the ARPP, i.e. as soon as there is compensation and intention to promote. The mention must appear at the beginning of the content (post, story, video, live) and be legible, for example” Advertising — Commercial collaboration with [Brand] ”, complemented by the platforms' native labels.

Customer obligation to collaborate: what does it mean?

The customer's obligation to collaborate (brand in particular) means that he must provide the creator with all the useful information on the products, respond to validation requests and guarantee the conformity of the elements provided. In the event of misleading information provided by the brand, the brand may be held responsible for sanctions or damages incurred by the creator.

What are the conditions for a successful influential partnership?

A successful influence partnership requires a clear contract, prior verification of the status and reputation of the creator, precise briefs, respected legal notices and performance monitoring in line with the GDPR. It is safer to reason in terms of cost per objective (qualified traffic, leads, sales) than simply in terms of price per publication, to avoid misalignments between the brand and the creator.

What are the golden business rules on social networks for a content creator?

The golden rules include: the transparency of partnerships, the compliance of messages with consumer law, the proactive management of risks (sensitive sectors, young audiences), compliance with the GDPR and the coherence between the image of the creator and that of the brand. A company that documents its processes (checklist, contract templates, internal guidelines) and receives legal support greatly reduces the risk of litigation or sanctions.

A regulated matter: why be accompanied by a lawyer

Influencer marketing and collaborations with content creators are at the crossroads of consumer law, advertising law, social law, intellectual property and data protection law. Texts evolve rapidly (influencer law, ARPP recommendations, platform practices), which makes it necessary for a lawyer to adapt your contracts, processes and campaigns to your specific activity (sector, target, target, target, target, target, target countries, platforms used).

In particular, legal support makes it possible to:

• Audit your current practices (briefs, contracts, validation processes, GDPR) and identify risk areas.
• Set up contract models and clauses adapted to your campaigns (France, Dubai, international collaborations).
• Anticipate potential disputes (contentious content, non-compliance with mentions, delays, breakdowns in collaboration) by providing effective resolution mechanisms.

Article written by Guillaume Leclerc, lawyer in commercial contracts and commercial litigation in Paris. I work daily for marketing and social media agencies (marketing and regulation of social networks), as well as for content creators, in France, Dubai and everywhere internationally.

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