By Raúl Bercovitz

Partner, Santiago Mediano Abogados

Rául is a commercial law attorney who specializes in Intellectual and Industrial Property matters. His work focuses on negotiating contracts, providing preventive and pre-litigation legal advice, as well as litigation management, and working in matters related to trademarks, patents, industrial designs, copyright, unfair competition and antitrust law.

Key summary

In an attempt to keep pace with the fast-moving advertising industry, a “Code of Conduct on the use of influencers in advertising” has been established in Spain. It is designed to remove loopholes in advertising regulation and ensure that influencers can co-exist within the current framework.

• The Spanish Advertisers Association (“AEA”) and the Association for the Self-Regulation of Commercial Communication (“Autocontrol”) have established a “Code of Conduct on the use of influencers in advertising”
• All content will be considered advertising statements or content subject to control by the Spanish authority ‘Autocontrol’, if it:
  
  1. Promotes products or services;
  2. Is disclosed in the context of partnerships or reciprocal commitments, and:
  3. there is editorial control by the advertiser or its agents over the content.

• The advertising nature of the comments made by influencers or their digital content must always be identified for their followers/potential consumers.
• The objective of this Code is to ensure that influencers, though important for advertising dissemination, are not able to distort the regulatory vehicle of advertising but instead co-exist within the current framework.

The boom of social networks has meant a change of paradigm in the world of advertising. The use by companies of social networks and influencers as an advertising strategy, has generated the concern to avoid surreptitious advertising. This type of advertising activity, like any other, is subject to current Spanish legislation, and in particular, what the doctrine has called the “Principle of authenticity” or “Principle of identification of advertising”, derived from the legal prohibitions provided by Law 3/1991, on Unfair Competition, and other sectorial regulations.

As a result of the above, on October 9, the Spanish Advertisers Association (“AEA”) and the Association for the Self-Regulation of Commercial Communication (“Autocontrol”) established a “Code of Conduct on the use of influencers in advertising” (hereinafter, the “Code”), in collaboration with the Ministry of Economic Affairs and Digital Transformation and the Ministry of Consumer Affairs, through which the deontological framework is established that will link all members of the AEA and Autocontrol, as well as any other companies in the sector (advertisers, agencies, representatives, media) or influencers that voluntarily adhere to the code of conduct. This Code can be accessed here. The date of entry into force is January 1, 2021.

The companies that are members of the AEA and AUTOCONTROL, as well as the influencers and other companies that adhere to the Code, commit themselves to comply with the rules included in the Code in their commercial communications. Moreover, the companies adhering to the Code commit themselves to inform the influencers they hire in their advertising campaigns about its existence, demanding the fulfillment of the Code’s ethical rules and favoring the possible adherence of the influencer to the Code on an individual basis.

In this way, the Code takes care of defining two relevant aspects: (i) what is understood by advertising statements or contents susceptible to control; and (ii) the identification of the advertising nature of the statements or contents disclosed.

Thus, on the one hand, all content (graphic or audiovisual) generated by partners or adhering to the Code will be considered advertising statements or content subject to control by the Spanish authority ‘Autocontrol’, if such content cumulatively fulfils the following requisites:

• Promotes products or services;
• Is disclosed in the context of partnerships or reciprocal commitments, being the disclosure of the content subject to a payment (direct or indirect) or other consideration (free delivery of a product, free admission to an event, gift vouchers, travel, etc.) by the advertiser or its representatives; and
• there is editorial control by the advertiser or its agents over the content disclosed.

Contents that have a purely editorial nature will not be considered as advertising and, therefore, the Code will not be applicable to them, nor to contents disclosed by influencers that respond to their own and only initiative, without any relation with the advertising company or its agents.

On the other hand, the advertising nature of the comments made by the influencers or the digital content they disseminate must always be duly identified for their followers/potential consumers. If the nature of the advertising is not clear and obvious to the eye, an explicit, immediate and appropriate indication of the medium and message must be included, such as “advertising”, “ad”, “Ambassador of [brand]”, “Thanks to [brand]”, “Gift of [brand]”, “Sponsored trip”, etc. However, generic indications (such as “information”, “legal” or similar), indications that require action by the user (for example, clicking), and unclear indications (such as “Colab”, “Sponso” or “sp”) are not recommended. And the indication regarding the advertising nature of the mention or content should be maintained or added when the influencer shares or “reposts” the content subject to this Code in other networks, platforms or web pages.

As provided in the second paragraph of Article 7 of Law 3/1991, on Unfair Competition, when the means of communication used impose limitations of space or time, in order to assess the existence of an omission of information, these limitations and all measures taken by the employer or professional to transmit the necessary information by other means will be taken into account.

Once the ethical standards have been established, the Code also provides for who is responsible for monitoring compliance. Member companies must establish internal control measures to ensure that the ethical standards contained in the Code are respected. They can also use the Copy Advice tool to submit their possible queries – on a voluntary, confidential and non-binding basis – to the Technical Office of ‘Autocontrol’. There is also a mechanism for subsequent control so that those who have adhered to the Code, such as the AEA, ‘Autocontrol’, Public Administrations, business or consumer associations, can file complaints for violations of the Code’s rules before the Advertising Jury of ‘Autocontrol’. Finally, monitoring is designed to check the degree of compliance with the rules contained in the Code by companies and influencers adhering to it.

In any case, the objective of the creation of this Code is no other than to join forces so that, a means of advertising dissemination as important as the influencers are at present, does not distort the regulatory vehicle of advertising, but that it is controlled and guarantees a lawful exercise of the creation of digital contents, which coexist in a loyal way within the framework of the economic advertising market.

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Santiago Mediano Abogados

Santiago Mediano Abogados is a law firm located in Lisbon (Portugal) with strong expertise in the fields of media, internet, and intellectual property.

Its specialists provide their legal services and consultancy to national and multinational groups in all matters related to the use of intellectual and industrial property, including sectors as diverse as the movie industry, television, music, technology, fashion and internet.