Last summer, the General Law of 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 Government approved the Royal Decree that obliges influencers - within a period of two months - to register in the State Registry of Audiovisual Communication Service Providers provided for in the law. Now all that remains is to define in another Royal Decree - throughout the first quarter of 2024 - what criteria will be used to determine who is an influencer subject to this new law.
When this entire legal framework is ready and definitively comes into force, content creators will be subject to child protection regulations and will not be able to encourage their child audience to ask their parents to buy them a certain product. Likewise, they may not advertise alcohol, tobacco or unauthorized health products. Furthermore, in general, any post for which they have received remuneration, whether in the form of sponsorship or when it is advertising, must be clearly identified as such. The latter is something that some social networks such as Instagram, TikTok or Twitch already required us to do. This was also required, as of 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 the Self-regulation of Commercial Communication (Autocontrol).
But it is usually common for this type of well-intentioned code to not have much experience. This is what happened, for example, with the self-regulatory code for advertising of certain foods intended for children. In the end, the Government had to regulate it by law.
In this sense, in a 2021 investigation that analyzed the regulation of covert influencer advertising, Elena Fernández-Blanco and Mercedes Ramos, 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 such transparency practices because posts marked as promotional content go viral less, as they move away from the naturalness that their followers seek. The difference is that now violators will have to face fines from 10,000 euros and up to 1.5 million euros depending on the severity of the violation and the level of billing.
Precisely, income level is one of the criteria that the law establishes to determine who should be considered an influencer. The law establishes in its article 94 that these are “specially relevant users who use video sharing services through the platform.” A definition vague enough that magnitudes of income and followers have been used. According to the law, an influencer is someone who makes a living making online content with which they earn an income of 500,000 euros per year or more and have more than 2,000,000 followers on average on any platform.
In the case of Spain there are few. According to laps4 data, you can find 12,000 influencers 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 that exceed 2 million. Instagram profiles such as Ibai Llanos (10.4 million), María Pombo (3.1) or Dulceida (3.4) would fall into this category, but right now, for example, Laura Escanes (1.9) would be left out. .
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 provides for a whole series of cases in which it will be applicable. Thus, if the influencer's activity has some relationship with the Spanish economy or part of the people on their team work in Spain or in an EU country, influencers will not escape having to comply with this law.
