Influencers and Brand Criticism: Between Freedom of Expression and Legal Responsibility

Today, nearly 49% of consumers report being influenced by social media in their online purchasing decisions. This statistic highlights the crucial role that influencers play in the digital economy. Brands collaborate with influencers through paid partnerships that ensure controlled visibility for their products. These collaborations, governed by contracts, define communication terms and promotional expectations. Other companies opt for gifting campaigns, sending products to creators with no obligation of promotion.

However, this growing closeness between brands and influencers raises the question of the limits of criticism. When an influencer expresses a negative opinion, the boundary between freedom of expression and harm to a brand’s reputation can become blurred, necessitating appropriate regulation to protect the interests of both parties.

The Limits of Criticism in France: Defamation and Disparagement

Freedom of expression, enshrined in Article 10 of the European Convention on Human Rights (ECHR), allows influencers to express opinions, including criticism of a brand. However, this freedom is not absolute and may be restricted to protect the reputation of businesses.

Defamation, as defined by Article 29 of the French Law of July 29, 1881, refers to statements that harm the honor or reputation of an individual or entity. However, it is not considered defamation if the criticism is based on verifiable facts or made in good faith. To avoid a defamation claim, four conditions should be met: the criticism must have a legitimate purpose, be made without malicious intent, be based on a serious investigation, and be expressed with caution.

Disparagement (dénigrement), on the other hand, consists of casting doubt on a product marketed by a brand. However, it may be justified if the statements concern a matter of general interest, are based on sufficient factual evidence, and are expressed with restraint (French Supreme Court ruling No. 18-15651, March 4, 2020).

When an influencer’s statements become insulting, false, or deliberately harmful to a brand’s reputation, they may be held legally liable.

How to Prevent Misuse?

Brands must anticipate risks before collaborating with an influencer, taking both marketing and legal precautions.

From a marketing perspective, it is crucial to ensure that the influencer aligns with the brand’s values. Reviewing their past publications can help identify any problematic content. Some companies even work with specialized digital influence agencies to conduct this analysis.

Legally, drafting a contract is essential to structuring the collaboration between the brand and the influencer. Since the Influencer Law of June 2023, contracts are required for partnerships exceeding a certain financial threshold (to be specified by decree).

In all cases, it is highly recommended to include clauses protecting the brand’s image, ensuring confidentiality, and prohibiting defamatory, disparaging, or discriminatory content. A clause requiring adherence to the brand’s code of conduct can also be included. The contract may further specify content creation guidelines, such as clear instructions or even a script to prevent misunderstandings.

A final pre-publication review by the brand helps ensure that the content aligns with contractual commitments and the desired brand image.

What Can a Brand Do in Case of Harmful Criticism?

If an influencer crosses the line of acceptable criticism, a brand has several options to respond.

First, it is advisable to have the disputed content recorded by a bailiff (huissier) to preserve evidence. The brand can then exercise its right of reply on its own social media channels to clarify the situation without escalating the controversy.

Direct contact with the influencer is often the best first step to request content removal or modification swiftly and discreetly.

If these measures are insufficient, the brand can take steps to have the harmful content removed. It may request deletion from the website host, citing the right to be forgotten under the GDPR. Another option is to request de-indexing from search engines to reduce visibility.

As a last resort, legal action may be considered. If the statements are defamatory, the brand can file a complaint under Article 29 of the Law of July 29, 1881, which governs press freedom. In cases of disparagement, the brand may pursue an unfair competition claim to seek damages. Additionally, if a contract exists between the brand and the influencer, any breach of protection clauses—such as non-disparagement or brand image respect—could justify a claim for compensation.

However, taking legal action carries the risk of negative publicity. The Streisand effect illustrates this phenomenon: when Beyoncé’s team attempted to remove unflattering photos from the 2013 Super Bowl, the effort backfired, making the images go viral. Similarly, suing an influencer could draw even more attention to the contested statements, increasing their visibility. Therefore, brands must carefully assess the potential impact before pursuing legal recourse.

Ultimately, influencer marketing relies on a delicate balance between content creators’ freedom of expression and brands’ need to protect their reputation. Anticipating risks through clear contractual frameworks and structured dialogue with influencers is essential to preventing conflicts and ensuring successful collaborations.