The use of influencers in Spanish advertising

On the 1st of January 2021, a new Code of Conduct, developed by AUTOCONTROL and the Spanish Association of Advertisers (AEA) and applying only to Spain, entered into force and established much-needed guidelines governing the relationship between social media networks and the advertising of goods and services, in particular, by so-called “influencers”.

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This code of conduct aims to cover certain advertisement principles and more specifically intends to help fulfil the Principle of authenticity of advertising and the prohibition of surreptitious (hidden) advertising. A series of policies and practices for businesses to comply with has therefore been developed.

Who will be required to respect the ethical code of influencers and by whom will it be enforced?

  • Businesses and influencers that are subscribed to AUTOCONROL and/or are members of the AEA will have to respect said code.
  • The Jury of AUTOCONTROL are in charge of checking compliance by the businesses and influencers mentioned above.
    • Businesses and influencers that are not subscribed do not need to follow the code of conduct, but an expert opinion can be published by AUTOCONTROL. This expert opinion is not legally binding, but its publication could give the influencer or business negative publicity.

How does the Code affect the relationship between businesses and influencers?

  • The businesses subscribed to the code must inform influencers of the existence of said code if they enter into any kind of professional relationship.
  • After being informed about the recommendations set out in the code they may enter into a contract. This means that any damages incurred or non-performance of the contract could be enforceable in further judicial proceedings.

What type of content must comply with the obligations contained in the code?

  • Only content with advertising features will be subject to the rules set out in the code. Content will be considered to ‘have advertising features” when:
    • It is intended to promote products or services;
    • It is disclosed in the context of reciprocal partnerships or commitments, and the disclosure of such content is the subject of payment or other consideration by the advertiser or its agents; or
    • The advertiser or its agents exercise editorial control over the content disclosed.
      Note that it is irrelevant whether the payment is in-kind or cash.

Where the influencer creates content by its own initiative, it will not be considered “advertising” and therefore will not be subject to the Code.

In what circumstances and how will this content be identified as advertising?

  • It must be identified as advertising when the public cannot easily identify the advertising nature of the content.
  • It is recommended to use clear generic notices such as “advertising”, “public”, “in collaboration with” or “sponsored by”, or descriptive notices depending on the specific collaboration in question (e.g. “Ambassador of [brand]”, “Thanks to [brand]”, “Gift of [brand]”, “Sponsored trip”, etc.).
  • Generic notices (such as “information”, “legal” or similar), are notices that require an action on the part of the user (e.g. clicking), and unclear notices (such as “Colab”, “Sponso” or “sp”) are discouraged.
  • A notice flagging the advertising nature of the content should be included when the influencer shares or “reposts” content which is subject to the code to other online platforms.

How must the tag be made visible, depending on the social media platform?

Blogs –  Including the identifying word or tag in the title of the post.

Facebook – Include the identifying word or tag in the title of the entry or post.

Instagram – Include the identifying word or tag in the caption above the photo or at the beginning of the displayed text. If only an image is displayed, the image itself must include the identifying word or tag at the beginning of the post. The advertising notice established by the platform itself (“Paid partnership tag”) may also be used.

Pinterest – Include the identifying word or tag at the beginning of the message.

Twitter – Include the identifying word or tag in the body of the message as a tag.

Vlogs – Superimpose the identifying word or tag while commenting on the product or service or say it out loud before talking about the promoted product or service.

YouTube and other video platforms such as Musical.ly and Twitch – Superimpose the identifying word or tag while commenting on the product or service or say it out loud before talking about the promoted product or service.

Snapchat – Include the identifying word or tag in the body of the message as a hashtag.

Concerns about advertising content posted by influencers – the Spanish Competition Authority (CNMC)

Thanks to new technology, the audiovisual market has evolved significantly. There has been a dramatic increase in the use of social media platforms such as YouTube, Twitch, Facebook, Instagram and Tik Tok, especially within younger generations. With this massive increase in both the number of online social media platforms and the content posted on those platforms comes risk.

The proliferation in online content, and advertising content specifically, threatens to compromise the essential values of the audiovisual regulatory framework. To this effect, the CNMC has carried out an internal analysis of content produced by a selection of prominent influencers in Spain in order to assess the impact that their content may have on consumers with special regard to advertising and protection of minors.

The CNMC found a significant amount of potentially inappropriate content and has called for greater supervision and regulation of online services. In light of this, the CNMC has carried out the following actions:

  •  Public Consultation process
    • Last October, the CNMC commenced a Public Consultation process on the application of audiovisual regulation to media service providers who operate on video-sharing platforms.
    • Through this public consultation, the CNMC aims to gather relevant information on the operation of these online services to better understand the scope and effectiveness of current audiovisual regulations.
    • The responses received are currently being analysed and the results of this process are expected to be published shortly.
  • European Workshop within the ERGA
    • At the European level, the CNMC is very active in the audiovisual field as a member of the European Regulators Group for Audiovisual Media Services (ERGA), which was created by the European Commission in 2014 and is composed of high-level representatives of national authorities.
    • The ERGA advises and supports the European Commission in order to ensure consistent application of the Audiovisual Media Services Directive, as well as on any other issues related to audiovisual communication media where the Commission may have authority (encouraging cooperation among the National Regulatory Authorities of EU Member States).
    • In September 2020, within the ERGA, the CNMC promoted and sponsored a Workshop between ERGA members and the industry on the regulation of Vloggers on video platforms.
    • As a result, the ERGA has published a report which, among other things, reaffirms the possibility of classifying influencers as audiovisual providers and encourages Member States to continue developing these ideas in 2021.
  • Report to the Ministry of Economic Affairs and Digital Transformation
    • In December 2020, the CNMC published a report requested by the Spanish Ministry of Economic Affairs and Digital Transformation, in relation to the Draft Law on General Audiovisual Communication (IPN/CNMC/042/20),
    • In particular, the CNMC has identified the need to include in the new Law a specific definition of influencers for two reasons:
      (i) to provide legal certainty by clarifying the applicable legal regime; and
      (ii) to guarantee the main objectives of this regulation (i.e. protection of minors, advertising, etc.) regardless of the type of content or the type of service on which they are broadcasted.
Mariano is a Partner in Bird & Bird's IP department
Antonio is a partner in Bird & Bird's Intellectual Property Group in Madrid. Antonio's practice covers all IP-related matters, including patents (in mechanical, chemical, electrical and biotechnology patent areas), as well as designs, trade marks, domain names, copyright and unfair competition, with particular expertise in trade secrets.
Candelo is an associate in the Competition & EU law practice in Madrid. She has extensive knowledge on a wide range of competition law issues and experience in advising national and international companies.

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