Nowadays, it is common to see many companies promoting their brands with the help of individuals who, thanks to their high level of popularity and reputation, can exert a certain influence on their followers; these are known as Influencers or “opinion leaders”. It is not surprising that this figure, also found under the name blogger, YouTuber, TikToker, or Instagrammer depending on the platform on which it operates, has become one of the most important means of advertising.
However, despite its pragmatic relevance, existing advertising regulations, although not expressly referring to the term “influencer”, we understand that it establishes mechanisms to impose obligations on these increasingly fewer new players in the advertising context.
However, it seems that public institutions are increasingly aware of the importance of “influencers” in the advertising sector.
For example, the National Markets and Competition Commission (CNMC), in its report IPN/CNMC/042/20 in relation to the Draft Bill of the General Audiovisual Communication Law, emphasizes the importance of including the activity of influencers in the new Audiovisual Law with which the Directive 2018/1808 of the European Parliament and of the Council on audiovisual media services.
From a non-normative perspective, we can point to the existence of a code of conduct on the use of influencers in advertising (hereinafter, the Code of Conduct) which came into force for all signatories on January 1, 2021. This Code of Conduct was drawn up by the Spanish Advertisers Association (AEA) and the Association for the Self-Regulation of Commercial Communication (Autocontrol) with the aim of establishing standards for best practices regarding the advertising carried out by influencers through its communication channels.
Thus, among its ethical standards, the Code of Conduct stipulates that all advertising content that makes a influencer should be perfectly identifiable for its followers as such. According to Article 3, advertising content is defined as content that cumulatively meets the following conditions:
- The content is aimed at promotion of products or services,
- It is disclosed within the framework of collaborations or reciprocal commitments, in exchange for consideration,
- The advertiser exercises certain editorial control about the disclosed content.
In its text, the Code of Conduct emphasizes that the consideration received by the influencer It can be either monetary or in kind. For example, free admission to an event in exchange for a advertising post shall be considered consideration. Therefore, the influencer you must indicate in your sponsored post that it is advertising content.
To better understand the obligations of Influencers When promoting products and/or services, we must refer to the principle of advertising authenticity, which basically prohibits practices that could cause confusion to the recipient of the advertising message (or consumer). In other words, the recipient of the advertising message must perceive it as such, without the consumer ever being able to confuse an opinion about a product or service with an advertising message.
This principle can be found in the articles of various regulations, such as, for example, Law 34/1988 on Advertising, Law 3/1991 on Unfair Competition o Law 34/2002 on Information Society Services and Electronic Commerce.
Law 7/2010, General Audiovisual Communication Law, as well as the draft General Audiovisual Communication Law, pending at the time of publication of this article, are also concerned with transparent advertising.
Thus, when advertising content is not perfectly identifiable as such, so that the recipient cannot understand and interpret it as an advertisement, it can be considered surreptitious advertising; a form of illegal advertising that our legislator introduces for the first time in Article 9 of the aforementioned General Advertising Law, establishing that "Advertisers must clearly disclose the advertising nature of their advertisements.”.
For its part, in Article 26, the Law 3/1991, of January 10, on Unfair Competition classifies this type of illegal advertising as an unfair practice: “It is considered unfair because it is misleading. include as information in the media, communications to promote a good or service, with the entrepreneur or professional paying for such promotion, without clearly specifying in the content or through images and sounds that are clearly identifiable to the consumer or user that it is advertising content”.
Law 34/2002 on Information Society Services and Electronic Commerce, establishes in Article 20.1: “Commercial communications made electronically must be clearly identifiable as such, and the natural or legal person on whose behalf they are made must also be clearly identifiable. Law 7/2010 on Audiovisual Communication It also prohibits surreptitious advertising in Article 18, and the draft General Audiovisual Communication Law continues with the principle of authenticity, as Article 130.3 states the following: "Covert audiovisual commercial communication is prohibited. which, through the direct or indirect verbal or visual presentation of goods, services, names, brands, or activities, intentionally has an advertising purpose and may mislead the public as to the nature of such presentation.”.
We should not confuse surreptitious advertising with other legal advertising techniques, such as product placement or product placement, which consists of inserting a product into the narrative of a program, but in compliance with the conditions established by law.
The Code of Conduct introduces a series of clarifications on how advertising content must be properly identified as such. It therefore recommends accompanying advertising posts with expressions such as “advertising”, “in collaboration with” or “sponsored by”On the other hand, it advises against the use of generic and unclear indications, such as “Collab”, “Sponso” or “Sp”.
Along the same lines, the Autocontrol Advertising Jury, responsible for resolving complaints regarding breaches of the ethical standards contained therein, has ruled in its Resolution of March 5, 2021 "that the mere mention of the brand on a label does not reveal the promotional purpose of the publication in a sufficiently clear and unambiguous manner”Likewise, with regard to the abbreviation ad added: "...it is an abbreviation of a term expressed in another language, which may not be understandable to all recipients., which therefore makes it difficult to infer from it a warning about the advertising nature or purpose of that.”
However, it should be noted that these resolutions, as well as the Code of Conduct, do not have universal application, as they only bind members of the “AEA” and “Autocontrol,” as well as any other companies in the sector or influencers that voluntarily adhere to it.
As we can see, there are mechanisms in place to prosecute conduct that constitutes illegal advertising due to its covert nature, although it is also true that advertisers are highly creative professionals who are always looking for ways to make us consume these advertising messages in such a way that we forget that they are advertising. That is why it is important to limit these new uses of consumption on platforms, social networks, and new forms of communication through regulations drawn up by legislators who are more aware of the different contexts we find ourselves in.
We hope this article helps you understand this issue. In any case, if you need legal assistance in this regard, at Bamboo we are lawyers specializing in intellectual property, legal aspects of advertising, and digital business, so we can always lend you a hand. You can find more information about our intellectual property services at this link.
[Article written by Marilena Kanatá and Fernando Olcina Ureta]
