Analysis of the amendment n°CE48 to the bill and alternatives

Context and objectives

The Association for the Development of Crypto-Assets (Adan) promotes clear regulations adapted to the risks when these are proven. In this sense, the bill proposed by Arthur DELAPORTE and Stéphane VOJETTA is positive; it aims to make social networks more virtuous, and to protect consumers against the risks linked to the promotion of misleading or illegal products and services.

On this issue, crypto-assets have been sadly highlighted by news stories such as the Marc and Nadé Blata affair, which sow mistrust about a technological innovation that is in no way linked to the scamming attempts of a minority. The crypto-asset sector must be allowed to continue to develop for the benefit of our economy and our jobs, while providing clarity and confidence to users.

 

In this respect, it seems necessary to work towards ensuring that the supervision of influencers – whose role in the development of the Web 3 economy is major – can fulfil the following four objectives:

  • To allow the consumer to easily differentiate between good and bad practice or between compliant and non-compliant companies;
  • To ensure that influencers are retained in France so that they can be managed according to the rules established in favor of the objectives we have set ourselves;
  • To enforce the regulations in force in an effective and efficient manner;
  • Sanctioning misleading commercial practices.

With regard to these objectives, Adan’s observations on amendment n°CE48 to the bill aimed at fighting against scams and abuses by influencers on social networks are presented below, as well as a proposal for an alternative framework that could be envisaged for influencers disseminating content related to crypto-assets.

I. Proposal by MEPs in amendment No. EC48: problems that remain to be solved

The amendment n°CE48 to the “influencers” bill proposed by the MPs Arthur DELAPORTE and Stéphane VOJETTA proposes to prohibit the promotion of the following services, offers and products by influencers

  • Financial contracts defined in article L. 533-12-7 of the monetary and financial code.

No comments on this provision.

  • The provision of services on crypto-assets within the meaning of Article L. 54-10-2 of the same code, with the exception of those for the provision of which the advertiser is approved under the conditions set out in Article L. 54-10-5 of the said code.

This provision authorizes the promotion of products or services only by digital asset service providers (CASPs) approved by the Autorité des marchés financiers (AMF). To date, the AMF has not issued any authorization to CASPs. Such a provision therefore amounts to prohibiting any communication in France on services on crypto-assets. Yet 7% of French unicorns have been built around blockchain and crypto-asset technologies. Without international harmonisation and/or increased control of published content, preventing the French market alone from promoting these activities would have the consequence of harming the competitiveness of our companies on this market, without better protecting consumers who will continue to access promotions from abroad.

Proposal: The promotion of content on crypto-assets should therefore be opened up to the following players:

⇒ Service providers of digital assets registered under Article L.54-10-3 of the Monetary and Financial Code. There are 65 such providers, who are regulated by the Financial Markets Authority (AMF) and whose registration criteria have just been strengthened under the DDADUE Act, which already requires them to provide clear and non-misleading information to the public. In this respect, it does not seem contrary to the objective of protecting consumers from possible scams to allow them to run promotions on their products and services. This is all the more true since these service providers are authorised to advertise in accordance with Article L. 222-16-1 of the Consumer Code, which would create an inconsistency in French law. As a large majority of these companies are French, this would also allow them to push their services to consumers who would otherwise naturally turn to foreign, more competitive and often less regulated providers.

⇒ Service companies whose activities are not subject to regulation of crypto-assets and are not intended to be. It should be noted here that services on crypto-assets are not necessarily financial services. This is particularly the case for companies offering their users utility tokens (digital assets attached to rights and services) which can, for example, be exchanged within a community to better share computer storage capacities. Here again, it does not appear that the promotion of this type of product and service runs counter to consumer protection.

1.c) An offer to the public of tokens within the meaning of Article L. 552-3 of the same Code, except where the advertiser has obtained the approval provided for in Article L. 552-4 of the Code

This provision does not pose any particular practical difficulties, and there is therefore no reason to oppose it. However, the following two points should be stressed:

  • Only three companies have the approval required by Article L. 552-4 of the Monetary and Financial Code. It therefore appears that influencers could only partner with these three operators, which does not seem to be a viable economic situation for influencers specialising in crypto-assets. Such a situation would lead the sector’s influencers either to diversify their activity and thus lose expertise; or to establish themselves in a jurisdiction that is more flexible with regard to the activity, and thus to be less supervised. Both situations run counter to consumer protection.
  • The visa procedure is optional for persons wishing to submit an offer of tokens (ICO) to the public. It was introduced in order to meet the financing needs of start-ups and to enable them to raise funds in an alternative way from the public at a stage of development and maturity when traditional sources of financing (bank or market) are not necessarily accessible to them. It therefore seems contradictory to refuse at the same time to allow these companies to communicate on the launch of the project to the public.

1.d) Investments or investments involving risks of loss for the consumer in a digital asset or, more generally, in a fungible or non-fungible intangible asset representing in digital form one or more rights, or one or more goods, that can be issued, registered, retained or transferred by means of a shared electronic recording device and that do not have the characteristics of a financial instrument, with the exception of investments or investments linked to services for which the advertiser is approved under the conditions set out in the same Article L. 54-10-5 of the same code.
This provision aims to prohibit the promotion of non-fungible tokens (NFTs) by influence professionals and, to this end, attempts to characterise them legally. This attempt calls for great caution for the following reasons:

  • NFTs are not legally defined by French law. Work is currently underway on this subject in France and in Europe. At the time of finalising the level 1 texts of the MiCA regulation (Markets in Crypto-assets), the European legislator has also chosen to exclude NFTs from its scope in order to better understand the complexity of the subject. Further discussions will be held throughout this year in order to produce a proposal to be submitted by the European Commission by early 2024. Similarly, in France, discussions are currently being conducted by the General Inspectorate of Finance (IGF) in order to define a regulatory framework adapted to NFT technological innovations and relevant to the protection of consumers who use them. It would therefore seem premature to use a legislative vehicle aimed at regulating the profession of influence today to draw legal consequences that have not been assessed for technological innovation.

 

  • A preliminary analysis of the proposal in this d) already indicates that the provision will take away some non-fungible tokens, which are used in settings that do not present risks for users. Indeed, NFTs have various characteristics and functionalities. For example, these technologies can be used: in the context of event activities (ticketing, event souvenir, animation within the event); by brands to engage their customers’ loyalty; to represent a product in digital and virtual worlds (e.g. a XXX brand handbag in the metaverse); to create decentralised identities allowing for customer verification (KYC) while protecting personal data. It does not seem justified that companies offering these – non-exhaustive – NFT use cases should not be able to promote their products and services through influence professionals.
    Proposal: It would seem advisable to wait until NFTs are regulated – after taking the time necessary to understand this innovation, the practices of the sector and the legal definition of these digital objects – before considering a framework for the advertising practices associated with them. Without this, France would risk depriving innovative companies – which present no risk to consumers – of promoting their activity and developing.

Proposal: It would seem advisable to wait until NFTs are regulated – after taking the time necessary to understand this innovation, the practices of the sector and the legal definition of these digital objects – before considering a framework for the advertising practices associated with them. Without this, France would risk depriving innovative companies – which present no risk to consumers – of promoting their activity and developing.

II. Adan’s alternative proposal: Provide for a reinforced framework in terms of posting for influencers disseminating commercial content on crypto-assets

Influencers communicating on crypto-assets must be subject to the general provisions provided for all influencers as well as by existing law (e.g. the fact that the promotion of products, acts or services carried out by the persons mentioned in Article L. 122-26 must be indicated by a visible banner on the image or video during the entirety of the promotion or that the advertiser having contracted with the influencer can be unambiguously identified by its brand or any other means).

However, influencer activity on crypto-assets may indeed call for specific additional requirements. The promotion of products and services on crypto-assets must therefore be able to strike a clear balance between the presentation of the performance and benefits of the digital assets and the risks associated with this type of investment. Influencers, the key sources of information for users in this market, are the de facto guarantors of this balance through the content they disseminate. The latter must therefore be regulated, taking into account the specificities of the sector and the practices on these markets. This proposal therefore establishes an additional framework for promotions by influencers when they specifically concern crypto-assets, so that users have the information they need to make an informed decision.

Article 1

I. In paragraph 7, delete the words: “and crypto-assets”.

II. After paragraph 11, insert a new III as follows

“III. – The promotion on social networks of investments or investments in crypto-assets involving risks of loss for the consumer is also prohibited, except under the following conditions:

“1° It specifies in a clear, accurate and non-misleading manner the nature of the product and/or service being promoted, respecting a balance between performances and mentioning the risks of loss of capital, volatility and technological risks;

“2° The public is explicitly informed, by means of a banner visible on the image or video for a reasonable duration of the promotion, that these are reserved for people of legal age;

“3° It does not present the returns as being systematically achievable, easily acquired or recurrent, while concealing the risks mentioned in 4° of this article;

“4° It does not create an analogy with the gambling defined in Article L. 320-1 of the Internal Security Code;

“5° It does not make it appear that purchasing the product and/or subscribing to services on crypto-assets is a quick and easy way to make money;

” 6° It specifies whether the product or service on digital assets is promoted by a registered or authorized provider under Article L.54-10-3 of the Monetary and Financial Code or whether the digital asset is offered in accordance with Article L. 552-4 of the Monetary and Financial Code.”

III. Consequently, adapt the numbering following paragraph 11.

About Adan

Adan (Association for the Development of Digital Assets) brings together 200 professionals – new players and established companies – who develop innovation and use cases of the decentralized web in all areas of the economy on a daily basis. By removing the obstacles to their growth and competitiveness, Adan works towards the emergence and influence of French and European champions in the service of our digital sovereignty. Adan promotes an appropriate, proportionate and catalyzing framework for innovation, but also a better understanding of new blockchain technologies, crypto-assets and their opportunities.

Contacts:

Website: https://adan.eu

Twitter : @adan_asso