Surreptitious advertising practices by various influencers according to the criteria of Autocontrol

Written on 23 Apr 2021

Autocontrol's Advertising Jury has considered that a concerted advertising campaign carried out by several influencers to promote a sports betting channel using the so-called "stories" of the social network Instagram infringes the rules of Code of Advertising Practice and the Royal Decree on commercial communications of gambling activities.

Autocontrol's Advertising Jury (the "Jury"), (an independent Spanish advertising self-regulatory body), has recently issued a decision and five opinions, sorting out several claims filed by the Communications User Association (Asociación de Usuarios de la Comunicación) against the posts that different influencers had included in their Instagram profiles. In particular, the Communications User Association identified that six influencers had published several texts with emojis and images in the "stories" functionality of the aforementioned social network, in which users visualised different sports betting forecasts. In turn, the images included in the stories were linked to a Telegram channel (an instant messaging platform), in which various sports forecasters marketed their advice to bet on specific sports events.

Under this scenario, the Jury first considered if these posts are of an "advertising" nature and if they are consistent or not with rule 13 of Autocontrol's Code of Advertising Practice (the "Code"). In this regard, taking into account that the influencers involved have essentially published the same content in their posts, using the same Q&A format with identical expressions and addressing the same issues, such as how much money could be made, and referring to the same sporting events, money bet and profit, the Jury considered that this coincidence in time and the publication of messages with very similar content made it clear that an advertising campaign was taking place.

In view of the above, the Jury understands that the ad being reported contravenes not only rule 13 of the Code, but also other provisions set out in Royal Decree 958/2020, of 3 November, on commercial communications of gambling activities (the "Royal Decree"), as we will see below.

Rule 13 of the Code sets out (among other things) that "commercial communications shall be identifiable as such regardless of the means, format, or media used" and, ultimately, that "a communication that promotes the sale of a good or the contracting of a service" should not passed off as any other type of communication. In this regard, and given that in this case the Jury did not identify any express warning that revealed the advertising purposes of the stories, and bearing in mind that, given their characteristics, a user could not deduce on his own if the post was an advertisement or not, the Jury understands that these messages are not consistent with rule 13. It should be recalled in this point that not all advertising communications are required to have the words "advertisement" or "ad" included to identify them as such if the advertising nature of a post is unquestionable from its context and characteristics, as set out in the Code of Conduct on the use of influencers in advertising issued by Autocontrol.

As we have already mentioned, the Jury also considered the infringement of rule 2 of the Code, in relation to several provisions of the Royal Decree, which develops the provisions related to advertising contained in Law 13/2021, of 27 May, on the regulation of gambling, as explained by Osborne Clarke in this article . Given that the posts suggested that more than one thousand euros could be made in an easy and quick way after making a contribution of thirty euros, the Jury considered that the posts were contrary to the provisions of article 10 of the Royal Decree, since the article prohibits any commercial communications in the gambling sector that may mislead users about their chances of winning prizes or suggest that repeatedly playing increases the chances of users winning. Likewise, the Jury has also ruled that article 15 of the Royal Decree has been infringed, as it prohibits the appearance of persons or individuals of public relevance or notoriety in commercial communications about gambling. In this regard, the Jury has made a broad interpretation of the concept of "persons of public relevance or notoriety" by considering that all influencers with a different number of followers are to be included in this category.

In its resolution and opinions issued, the Jury also found a violation of article 26 of the Royal Decree, since compliance with any of the requirements for the distribution of commercial communications about gambling on social networks has not been accredited (among others, that there are tools to prevent communications from reaching minors or that users may configure settings to block or hide pop-up ads).

As a conclusion, it should be highlighted that, although Autocontrol has not fined these influencers, it has laid down the foundations for what will possibly be the organization's roadmap with regard to influencers advertising content on social media and, in any case, adding another element to an ongoing legal discussion regarding the regulation of the new forms of advertising that have arisen through influencers.