In this article, Margaux FRISQUE, Partner, and Joseph BOHBOT, Senior Associate at the law firm d&a partners, analyze the main points of attention and best practices for discussing crypto-assets online and on social media.
Are you an influencer, platform, agency or advertiser looking to secure a campaign or an affiliate program? The firm d&a partners can assist you in analyzing the program, the content and the liabilities incurred, so that you can communicate with complete peace of mind.
Can an affiliate or referral link, a promo code, a copy trading video or a subscription presented as free give rise to the liability of a crypto influencer (or “finfluencer”)? Yes.
The law of June 9, 20231, known as the “influencers law” or the Delaporte-Vojetta law, regulated commercial influence by electronic means. It targets persons who use their notoriety with an audience, in return for consideration, in order to directly or indirectly promote a good, a service or a cause. The notion of consideration is interpreted broadly and may result, in particular, from an affiliate commission, a benefit in kind or any profit derived from the promotion.
In the world of crypto-assets, the risk does not depend solely on the project or platform being promoted; it may also stem from the way the post is presented, the path users are required to follow, or the content offered after the post.
First pitfall: forgetting that an affiliate link or referral code can be advertising
An influencer does not need to receive a transfer directly from the platform to fall within the commercial influence regime. Remuneration calculated according to the number of clicks, sign-ups or transactions may suffice. The same applies when an economic benefit is obtained indirectly, notably through an affiliate or referral program.
The question to ask is simple: does the influencer derive an economic benefit from promoting the service or the crypto-asset? If the answer is yes, the content cannot be treated as a mere personal opinion.
Posting the link in a YouTube or TikTok video, an Instagram story, a post on X, a description, a bio or a private Telegram or Discord group does not necessarily change its nature. A presentation that encourages an audience to open an account, use a platform or buy a crypto-asset may constitute direct or indirect promotion.
Second pitfall: concealing the commercial intent – the mandatory “advertising” label
The label “advertising” or “commercial collaboration” is not a secondary formality. The absence of a clear, legible and understandable indication of commercial intent constitutes a misleading commercial practice where that intent is not already apparent from the context.
The label must be immediately identifiable by the public. An indication buried at the end of a description, placed after several hashtags or accessible only after several clicks may be insufficient depending on the circumstances.
A general statement on the influencer’s channel or in their bio does not necessarily cover all posts. Each piece of content must be analyzed separately.
Third pitfall: presenting a crypto platform as authorized without checking its MiCA authorization (CASP)
Promoting a crypto platform is not just a matter of checking that its website works. You must also verify the services actually offered, the legal entity concerned and the authorizations it holds to target French or European customers.
The French Consumer Code classifies as a practice deemed misleading the act of claiming that a professional, product or service has been approved, endorsed or authorized when this is not the case. The same applies when the communication gives the impression that a service is lawful when it is not.
Consulting the lists published by the AMF (list of authorized CASPs, blacklists of unauthorized websites) is therefore an essential reflex, but it is not sufficient on its own. The analysis must cover the promoted entity, the targeted territory and the service offered. This point is all the more sensitive since, as of July 1, 2026 and the end of the MiCA transitional period, mere DASP (PSAN) registration is no longer sufficient: only crypto-asset service providers (CASPs) authorized under MiCA, by the AMF or by the authority of another Member State via the European passport, may provide their services in France.
Fourth pitfall: believing that anything goes as long as the platform is well known – crypto promotion and the MiCA regulation
The law of June 9, 2023 prohibits, in principle, the direct or indirect promotion of the provision of crypto-asset services. An exception applies where the advertiser is approved or authorized in accordance with the European MiCA regulation (Markets in Crypto-Assets, Regulation (EU) 2023/1114). The promotion of crypto-assets is also subject to specific conditions.
This exception does not mean that a well-known platform can be promoted freely. It requires verifying the entity contracting with the influencer, the services covered by its authorization and the exact nature of the campaign.
An authorization granted to one entity of a group does not necessarily allow all of the group’s activities to be presented as authorized. An authorization limited to certain services does not automatically cover all crypto-asset services.
Sweeping statements such as “regulated platform” or “risk-free platform” should also be avoided. A communication may be misleading when it gives an exaggerated impression of the security, scope or extent of an authorization.
Fifth pitfall: presenting as free a service that requires something in return (signals, training, bonuses)
The Consumer Code prohibits presenting a product or service as “free”, “at no cost” or equivalent when the consumer must pay anything other than the unavoidable costs of responding to the commercial practice or taking possession of the product.
The issue is not limited to paying a sum of money: access presented as free may be problematic when it requires opening an account with a platform, using an affiliate link, subscribing to a service (trading signals group, training course), providing data, or completing a step that generates remuneration for the influencer.
Sixth pitfall: crossing the line between content and crypto-asset services – investment advice and copy trading
Talking about crypto-assets does not automatically amount to providing a crypto-asset service. However, the risk increases when the influencer no longer limits themselves to commenting on the news or sharing general analysis.
Personalized recommendations may raise different questions. The analysis must notably consider the degree of personalization of the content and whether instructions are given to the user.
An influencer who personally uses a service is not in the same situation as one who invites their audience to open an account, replicate their trades or automatically follow their transactions (copy trading). In the latter case, the content may be analyzed as the promotion of a crypto-asset service and, depending on the specific arrangements, raise issues relating to the provision of advice on crypto-assets or portfolio management.
Seventh pitfall: thinking the risk is limited to having a post removed – the penalties incurred
Failure to comply with the applicable framework may expose the influencer to several types of consequences: content removal, delisting, injunctions, administrative penalties (notably imposed by the DGCCRF), contractual liability or criminal prosecution.
The misleading commercial practices referred to in Articles L. 121-2 to L. 121-4 of the Consumer Code are punishable by two years’ imprisonment and a fine of €300,000. The fine may also be increased, in proportion to the benefits derived from the offense, to 10% of average annual turnover, or to 50% of the expenses incurred in committing the offense. Where the offense is committed through an online public communication service or a digital medium, the penalties may be increased to five years’ imprisonment and a fine of €750,000.
Convicted individuals also face an additional penalty of being banned from working as an influencer for up to five years.
Liability may also extend to the advertiser and the influencer’s agent.
The right questions to ask before each post: the crypto influencer’s checklist
Before publishing content, a crypto influencer should be able to answer several questions.
Is the post directly or indirectly remunerated? Is its commercial nature immediately and clearly apparent? Is the promoted entity precisely identified? Are the services offered authorized for the targeted territory and audience? Does the content include a consideration or access condition that contradicts the advertised free nature? Is the post limited to general information, or does it encourage users to open an account, invest, copy a strategy or follow a personalized recommendation? Has the influencer obtained the ARPP Responsible Influence Certificate, whose finance module is recommended by the AMF?
This is not about applying an automatic formula. The same content may be lawful in one context and problematic in another, depending on the remuneration, the targeted audience, the platform concerned, the wording used and the path offered to users.
- Law No. 2023-451 of June 9, 2023 aimed at regulating commercial influence and combating abuses by influencers on social media. ↩︎