Last summer, the general law on Audiovisual Communication was approved, which, pending regulations that specify some aspects, establishes the red lines that influencers cannot cross in their content on social networks. At the end of December, the Spanish Government approved the royal decree that obliges influencers – within two months – to register in the State Register of Audiovisual Communication Service Providers provided for in the law. Now all that remains is to define in another royal decree – during the first quarter of 2024 – the criteria that will be used to determine which influencers will be subject to this new law.
When all this legal framework is ready and finally comes into force, content creators will be subject to child protection rules and will not be able to encourage their child audience to ask their parents to buy a certain product. In the same way, they will not be able to advertise alcohol, tobacco or unauthorized health products. In addition, in general, any post for which they have received remuneration, either in the form of sponsorship or when it comes to advertising, must be clearly identified as such. The latter is something that some social networks such as Instagram, TikTok or Twitch already forced to do. It was also required, from January 1, 2021, by the Code of Conduct on the use of influencers in advertising, developed by the Spanish Association of Advertisers (AEA) and the Association for Self-Regulation of Commercial Communication (Self-control).
But these types of well-intentioned codes usually don’t go far. This is what happened, for example, with the self-regulatory code for the advertising of certain foods intended for children. In the end, the Central Government had to regulate it by law.
In this sense, in a 2021 investigation that analyzed the regulation of covert advertising of influencers, Elena Fernández-Blanco and Mercedes, both professors at the Pontifical University of Salamanca, analyzed the publications of ten content creators for half a year, and they concluded that, on average, only 16% of the publications clearly identified that it was advertising content.
Influencers have always been reluctant to these practices of transparency, since posts marked as promotional content go viral less, as they move away from the naturalness that their followers are looking for. The difference is that offenders will now have to face fines ranging from 10,000 euros to 1.5 million euros depending on the severity of the offense and the level of turnover.
Precisely, the level of income is one of the criteria established by law to determine who should be considered an influencer. The law establishes in article 94 that these are “users of special relevance who use video exchange services through the platform”. A definition vague enough that income and followers figures have been used. According to the law, an influencer is someone who earns a living by making online content that generates an annual income of 500,000 euros or more and has more than 2,000,000 followers on average on any platform.
In the case of Spain, there are few. According to laps4 data, 12,000 influencers can be found with more than 100,000 followers, but only 1,100 with more than one million. The figure is much lower in the case of those who exceed 2 million. This category would include Instagram profiles such as that of Ibai Llanos (10.4 million), María Pombo (3.1) or Dulceida (3.4), but right now it would be left out, for example, Laura Escanes ( 1.9).
Obviously, the law is only applicable to those creators who work from Spain, but, given the tendency in this world to establish residence abroad, the legal text foresees a whole series of cases in which it will be applied. Thus, if the influencer’s activity has any relationship with the Spanish economy or part of the people in their team work in Spain or in some EU country, the influencers will not escape having to comply with this law .
