Influencer marketing has become, quite literally, a trending topic in advertising, as an especially effective method to advertise products and/or services to influencers’ followers. In this sense, a person who creates content on a social media platform and has a certain number of followers ─influencer─ represents a great opportunity for companies to market their products to the influencers’ followers, who usually have a similar consumer profile and might be interested in the advertised offering.
Since influencer marketing is a widely spread practice in the Spanish market, it would be advisable for advertisers to carefully assess their influencer marketing practices in order to avoid surreptitious advertising, in accordance with Article 26 of Act 3/1991, of 10 January, on Unfair Competition, which is prohibited by Article 3(e) of General Act 34/1988, of 11 November, on Advertising. Furthermore, as the content would be advertised through digital media (usually a social network), Article 20 of Act 34/2002, of 11 July, on Information Society Services and Electronic Commerce shall also be applicable, which additionally sets forth that the name of the advertiser shall be clearly identified.
In addition to the above mentioned transparency general requirements, influencer marketing is not specifically regulated in Spain. To address how an advertiser may be compliant with advertising laws in more detail, it would be necessary to abide by the decisions and publications by Autocontrol ─the independent advertising self-regulatory organisation (SRO) in Spain─, which is expected to publish (in collaboration with the Spanish Advertisers Association) a Code of Conduct on the use of influencers in advertising.
Although we should note that Autocontrol’s decisions and publications would only be binding on those advertisers that are adhered to Autocontrol, they may be considered as adequate guidelines in order for advertisers to assess whether their practices comply with the transparency requirements established under Spanish law. In particular for influencer marketing, for as long as the above mentioned Code of Conduct is not published, Rule 13 of the Autocontrol Advertising Code of Conduct relating to authenticity shall be applicable, which sets forth that commercial communications shall be identified as such, whichever their form, format or means used may be. In addition, the true purpose of the advertisement shall also be identified in such commercial communication.
It is also worth mentioning the Influencer Marketing White Book that was recently published by IAB Spain (a worldwide communication, advertising and digital marketing association), which includes several recommendations to improve credibility, transparency, and efficiency in the influencer sector. According to the White Book, it is important that the public targeted by the promotion is well aware that such promotion is advertising per se, rather than a mere recommendation.
The White Book of IAB Spain notes that if the context itself in which a commercial communication is published meets the transparency requirements (e.g. if the content is published on the company’s brand website or the official profile of such brand on a social network), it could not be necessary to indicate the message as ‘ad’ or ‘advertising’. On the contrary, if the context is not sufficient for the average user to identify that the message has promotional content, then it would be advisable to tag the communication as ‘content offered by’ or other similar constructs that enable the recipient user to be aware of the promotional nature of the content of the communication.
As influencer marketing is not specifically regulated in Spain, it would be interesting to also address the particular agreement that an influencer and an advertiser may reach for the promotion of certain products and/or services. Currently, these agreements do not require a specific form, nor a minimum content in order to be valid. In particular, we consider that for these sponsorship agreements it would be especially important to regulate, on one hand, the corresponding influencer’s image rights assignment, as well as protecting any copyright relating to its publications, and, on the other hand, the necessary license for using the trademark that shall be displayed in the relevant influencer content in order to advertise the products and/or services.
Further to the above, as noted by the White Book of IAB Spain, some of the agreements executed between advertisers and influencers envisage an assignment of intellectual property rights with an economic nature in favour of the brand for an indefinite period of time. In this sense, it must be remembered that the Spanish Copyright Act (approved by Royal Legislative Decree 1/1996, of 12 April) prohibits any perpetual assignment of patrimonial or exploitation rights and obliges a limit to be established on the duration of such assignments. It should also be noted that if the agreement does not establish a certain period of time, the assignment shall have a duration of 5 years under Spanish law.
In addition to the mentioned publications, Autocontrol may process claims relating to commercial communications in Spain submitted by, inter alia, consumer associations and competing companies. In this regard, it is important to note that Autocontrol has recently published its first decision against an influencer (Decision of 28 November of 2019 of the Jury’s Fourth Section of Autocontrol), as the influencer did not adequately identify its content as a commercial communication. However, we should note that even though these decisions are not binding on those companies that are not adhered to the self-regulatory body, they could be disclosed to the competent judicial authorities should the relevant claim be established before the courts.
Another element that would be interesting to comment on influencer marketing is the fact that it usually entails an international component, which may hinder identifying which competent jurisdiction it would fall under. As it is a globalised sector, it could be quite common for an average Spanish consumer to follow third country influencers on social media. In this sense, international companies require influencers, through their sponsorship agreements, to include hashtags such as #ad or #sponsored in their publications to comply with the transparency requirements that may be established in several countries.
In relation to the above, and regarding potential claims, it is worth mentioning the role of the European Advertising Standards Alliance -EASA-. EASA is in charge of managing a cross-border advertising dispute resolution system (in which Autocontrol is taking part) that enables any EU consumer to submit their claims to the competent foreign advertising self-regulatory body through the homologous existent body in its own country.
In general terms, and despite the fact that influencer marketing is not specifically regulated, there are many publications and decisions that may be used as adequate guidelines to meet the transparency requirements under Spanish advertising law. Thus, commercial communications on a social network and other digital media through the use of influencers may be as safe as traditional advertising.