With the digital transformation and new forms of communication in social networks, new professional activities have emerged, such as that exercised by those who are called “influencers”. Its business is based on the development of content sponsored by companies and brands that they then publish on their social network accounts. The goal? Let digital content go viral so that it can be viewed and shared en masse on these social platforms.
These “influencers” become opinion leaders and act on digital platforms like Instagram, YouTube or Tik Tok, and earn income by promoting products and services in creative ways, although often without specifying that such messages do. part of a group advertising campaign. And this is where the question arises: what are the regulations applicable to influencers?
“The professionalization of so-called influencer communicators, who use social networks to promote third-party products and services to their many followers, through specific regulations for the development of their activity. And it is that in many cases, they carry out this promotional activity without informing in a differentiated way that it is advertising or sponsored content ”, explains lawyer Efrn Daz, head of the Technology area of the law firm. Mas y Calvet.
Applicable regulatory framework and compliance
Currently, Law 34/2002, of July 11, on Services of the Information Society and Electronic Commerce (LSSI) is applicable to influencers. In its article 20.1, it explicitly requires that “commercial communications carried out by electronic means must be clearly identifiable as such, and the natural or legal person in whose name they are made must also be clearly identifiable”.
“The first legal obligation of influencers is to specify whether the content they publish is sponsored by brands or companies, identifying their sponsors so that subscribers have the information they need to know that it is advertising. This applies to all formats: post, live broadcast called “live”, or even a “story” or a video. If influencers do not comply with this regulation, they can currently be sanctioned up to 30,000 euros, ”warns the specialist.
On the other hand, Law 34/1988, of November 11, General Advertising, also applies to them. The standard defines the advertiser as the person or entity in whose interest the advertisement is carried out, and also conceptualizes advertising agencies as the professionally and organized persons or entities to create, prepare, schedule or execute advertising. on behalf of an advertiser (Article 8). And he adds that the means of advertising are natural or legal persons, public or private, who, on a regular and organized basis, devote themselves to the dissemination of advertising through the media or social communication media of which they are the property.
Influencers can be mentored, due to their habitual nature, as an advertising agency or as a means of advertising. In the event of incorrect identification of the content as advertising or the advertiser, this could be interpreted as illegal advertising. For legal purposes (art. 3.e LSSI), it is identified as such “misleading advertising, unfair advertising and aggressive advertising, which will have the character of acts of unfair competition in the terms envisaged in the law on unfair competition “.
A third rule that can apply to influencers is the Code on the use of influencers in advertising, the objective of which is that the digital content or the mentions made by these communicators in their networks which have an advertising character are identifiable as such for their subscribers. .
The Code indicates, among other things, that the contents in which their advertising character is not clear and manifest, must include an explicit, immediate and appropriate indication to the medium and to the message.
Its rules are binding on entities and professionals adhering to the Spanish Association of Advertisers (aea) and AUTOCONTROL, which must inform influencers of this Code, encourage their adherence to good practices and include in their contracts the need to comply ethical standards. contained therein. But it can also be voluntary.
“The problem in this case is that bad practices will not be sanctioned and there have been cases where the Advertising Jury, depending on AUTOCONTROL, has reprimanded several influencers for secret advertising, but without having sanctioned them.
Buying followers to appear more “influential” on social media is another bad practice. “For this type of action to be denounced to be considered an unfair and / or deceptive commercial practice, it is essential to prove it by means of sufficient evidence”, underlines the lawyer Efrn Daz.
On the other hand, the National Commission for Markets and Competition (CNMC) has proposed including the activity of “influencers” in the draft general audiovisual communication law, under the pretext of considering them as audiovisual providers. The objective is to prohibit disguised audiovisual commercial communication, both verbally and visually, directly or indirectly, of goods, services, names, brands or activities so as not to mislead the public.