In terms of its advertising industry, France stands out from the rest of the world. This is due to the particular constraints imposed by French media buying law (commonly referred to as “Loi Sapin”). Pursuant to this law, advertising agencies may only act as an agent of the client when purchasing “advertising space” from media vendors.
The agency may be remunerated only by the advertiser and must ensure effective communication in order to be completely transparent in respect of all discounts or tariff advantages granted by the seller. The seller’s invoice must also be clearly relayed by the agency to the advertiser. This law was adopted to fight the significant margins, usually unknown to their customers, which could be made by some agencies through their volume of purchase.
The media vendor, who may be either the media owner/publisher or an agent of the media owner/publisher (in French a “régie publicitaire”) is also required by law to report directly to the advertiser within one month of the broadcast of the commercial message, detailing the conditions under which the services were performed.
There has been some debate about whether the existing law should (or even could) apply to digital advertisement – in particular to performance marketing or real time bidding. The law was amended in August 2015 to specify that it applies to the purchase of advertising space “on any medium whatsoever”. This would include digital advertising.
“Digital advertising services”, as covered by the 2015 amendment, have been defined in a recent decree of 9 February 2017, as “those intended to broadcast messages on any medium connected to the internet, such as computers, tablets, mobile phones, televisions and digital panels”.
The much anticipated decree of 9 February 2017 has also clarified the media vendor’s reporting obligations for digital advertising, which come into force on 1 January 2018. In particular, it sets out the types of reporting obligations that are required for “real time bidding” and performance marketing or optimization.
The purpose of these reporting requirements is to allow the advertiser to verify:
- what services have been performed and the price invoiced;
- the technical quality of the services;
- the means used to protect the image of the advertiser’s brand; and
- where applicable, compliance with any relevant code of conduct applicable to the advertising sector.
Additionally, the advertiser may have access to the reporting tools made available to the advertising agency.
The reporting obligation does not apply to sellers of advertising space established in another Member State of the EU or EEA who are already subject to equivalent reporting obligations in their country.