The Influencer Law will impose obligations on content creators who earn more than 500,000 euros or who have more than 2 million followers.
In June of this year, France approved a law to regulate influencers, a regulation that imposed a ban on advertising of raffles and gambling activities on those platforms that did not have mechanisms to prevent the exposure of minors. Now on the national scene, the implementation, during the first quarter of 2024, of a Royal Decree Project was approved to control the content published by influencers and YouTubers on their social networks.
This regulation will control the products that content creators advertise on their channels, with the aim of protecting users. In this way, the Ministry of Economy and Digital Transformation has prepared a Draft Royal Decree that will impose new obligations on influencers who earn more than 500,000 euros per year and have more than two million followers.
Protection against surreptitious advertising, harmful messages in relation to health or beauty or the promotion of gambling addiction will be some of the points on which this law will focus. In this way, content creators will have to comply with the obligations of the General Law of Audiovisual Communication approved in July 2022. The bill is still in a revision stage, and is subject to proposals from this group of users until on December 20.
A law to establish good advertising practices among large influencers
In terms of advertising, this regulation seeks to promote honest and clear advertising or content practices, since these types of messages have a great impact on the audience that views them. In this way, advertising control is established, requiring that commercial communications be clearly differentiated from editorial content, and restrictions are established on the sound level of advertising: it cannot have a louder sound than the rest of the content, guaranteeing more balanced viewing experience.
Furthermore, another of the great novelties of this law is the introduction of the concept “users of special relevance” to refer to influencers, tiktokers, youtubers, instagramers, etc. The requirements to be considered as such, according to Article 94.2.a of the LGCA, will be, among others, that the service provided entails an economic activity through which its owner obtains significant income (equal to or greater than 500,000 euros) derived from its activity. in video sharing services through the platform.
An average number of followers equal to or greater than 2,000,000 during the previous year will also apply to content creators in any of the video sharing services through platforms in which the user carries out their activity or has made at least 24 videos. in the previous year, regardless of its duration.
The influencer law: a legal framework for content creators
Ismael El-Qudsi, CEO of Internet República and SocialPubli.com, highlights that the establishment of regulation is positive because it gives credibility to an emerging market such as influencers and reliability to advertisers who still have reservations about trying this form of advertising. so disruptive.
«It should be noted that some players in the sector have been talking to associations such as Autocontrol for almost three years to give our feedback, since the first drafts were nonsense and, for example, they intended that any influencer, even if they had 1,000 followers, would register in a file controlled by the Government. These new limits make more sense and in the end in terms of regulation we should tend to play with the same rules as television celebrities,” says the professional. Among the “specially relevant users” would be profiles such as Ibai Llanos, Cristinini or Dulceida, who meet the requirements of the regulations to be considered as such.
El-Qudsi highlights that influencers who reach income of 500,000 euros for their activity on social networks or amass 2 million followers are “media in themselves and I think it is good that they are regulated.” But, the establishment of these figures has raised questions about the regulation of smaller influencers, also known as “micro-influencers.”
«In our case they contacted us to ask our opinion, since we have 100,000 micro-influencers in Spain and we are the most important actor, and it seemed to us that such strict regulation of micro-influencers did not make sense. Of course, they must be governed by the same rules as other media regarding promoting alcohol, medicines, sports betting, etc.,” clarifies Ismael El-Qudsi.
Responsibilities and an ethical framework for opinion leaders
Pelayo Santos, Senior Manager of the PR & Influencer Marketing area at NewLink, highlights that it was essential to have legislation that “clearly established the responsibilities and an ethical framework of action in relation to publications generated by opinion leaders, influencers and creators of content, whether for financial compensation or through exchanges of products/experiences.
The request for a law that would regulate the activity of influencers, and in Santos’ opinion this “should have been made much earlier, considering the extensive time that has passed since the emergence of this sector.” This is because anyone could share advertising content without legal consequences, “even if the content was misleading or was not clearly identified as advertising,” explains the professional.
This is why the influencer law is important. Furthermore, this regulation needs to be constantly updated since this sector evolves rapidly with the continuous appearance of new actors and platforms, as well as new opinion leaders who must adjust to the established legal framework. Santos adds “it is crucial that the law is effectively applied and that all parties involved, such as brands, representatives, content creators, agencies, among others, comply with it, since we must be the first to set an example and comply with the provisions.” established.
What prohibitions does this law establish?
The influencer law would limit content creators in the same way as it does figures such as journalists, publicists or filmmakers. Among the controls is, for example, the requirement to clearly specify promotions, advertisements or mentions for economic purposes in order to avoid hidden advertising and protect audiences. Among the prohibitions of the law is inciting minors to purchase products, as well as showing dangerous situations for minors in an unjustified manner.
In addition, it prohibits the promotion of unhealthy foods, or products such as tobacco, electronic cigarettes (vapers), medications and health products. The promotion of alcohol and games of chance will also be penalized, commercial communication related to betting can only be carried out from 1:00 a.m. to 5:00 a.m., unless it is a lottery game.
Furthermore, the law rejects the promotion of body worship and erroneous standards of self-perception, which may lead to eating disorders, such as advertising for slimming products, surgical interventions or aesthetic treatments.
Failure to comply with the General Law of Audiovisual Communication results in sanctions between 10,000 euros and up to 1.5 million, but depending on the income of the person committing them and the seriousness of the conduct.
The recognition of a professional figure with its own legislation
Sheila Martín, Social Media at Marketing Paradise, highlights that for a long time, both influencers and marketing and advertising professionals have demanded that their figure be recognized as a professional profile with its own legislation, as occurs in other categories.
For Martín, regulatory measures like these, which ensure good use of his advertising work and protect the user, as occurs with other formats or media, are essential. “What we do believe may be debatable are the requirements that have been established to consider “specially relevant users” only some influencers, who will be the ones subject to this Law,” the professional highlights.
«Any profile from which advertising content is made, regardless of its turnover or community size, should be subject to certain measures. For example, all those aimed at eliminating covert and subliminal advertising or restricting the promotion of certain products that are harmful to health, as well as medicines or pseudo-health products that do not comply with current regulations,” she says.
In this sense, she points out that the community or billing requirement should be taken into account in each bad practice individually, “being able to truly assess the scope of specific content or campaigns. This would mean a much more detailed development of different scenarios and cases, which we understand is complicated, but probably fits a little more to the reality of the influencer/content creator panorama today.
The relevance of this regulation in Spain
Regarding the importance of this new regulation, Ismael El-Qudsi, CEO of Internet República and SocialPubli.com, highlights that the sector is not yet aware of its weight. «From the Government the messages tend to be apocalyptic, mixing churras with merinos and even mixing the issue of persecution of influencers who increasingly emigrate to countries with more favorable taxation such as Andorra and to a lesser extent Portugal. “I think that the regulation will be announced by imposing two or three “exemplary” fines on some famous influencer and will cause a cascade effect in which the influencers find out that this is serious,” he explains.
For Pelayo Santos, the industry is not fully aware of the true importance of this legislation, nor of the regulation and self-regulation code that Autocontrol “The White Book of Responsible Influence”, which highlights the need for digital content or mentions made by opinion leaders or influencers for advertising purposes were clearly identifiable.
«If we want the industry to professionalize and progress, it is a shared responsibility of the entire influence ecosystem: from the media and social platforms to public and private institutions, including influencers, agencies, representatives and society in general. “Everyone must contribute to the effort to achieve a more transparent sector,” says the professional.
Sheila Martín believes that there is still no excessive concern among professionals. She highlights that brands belonging to sectors that may be restricted are not so affected, since “they will have this very measured, because there are already measures at the advertising level in other media and they will have had to deal with similar situations. For those who will mean a big change, it will be for the influencers themselves, who will be forced to have a legal team nearby.
A regulation that needs greater clarity
For her part, Fátima Martínez, Digital Marketing and Social Media specialist, highlights that this regulation “has many shortcomings.” For example, there is a lack of exact references on which audience it refers to, or who those relevant users are. «Now it is not known for sure who can be a relevant user because a person who has 500,000 followers and suddenly gets 8 million views on a video becomes relevant and therefore should be registered. The regulation has a serious lack of specificity and generates legal uncertainty,” says the professional.
«The published regulation does not specify anywhere that the relevant users have to have 2 million followers or 500,000 euros in billing, nor does it specify annual billing. “That was in the draft laws but it is not in the regulations, therefore, who are those users?” asks Martínez. Furthermore, she highlights that a paradox arises for those who, although they are not influencers today, tomorrow post a video and reach 10 million views and “are violating the regulations because they are a relevant user.”
Regarding the relevance of this regulation, Fátima Martínez explains that the sector is still not aware of the importance it has, “because it affects all of us who work in digital services: it affects influencers, it affects advertising agencies, it affects to the representatives of influencers and affects the platforms. We must not forget that this Regulation came out in the middle of Christmas, and it is difficult for those affected to have complete knowledge of its effects. This is going to force important legal changes to be made in the sector,” she concludes.
