Influencers now have a new law. Here’s a summary of the key points

Last May, Royal Decree 444/2024 was approved. This decree regulates the requirements for being considered a user of special relevance on video-sharing platform services, more commonly known as the “Influencers Law”.

This law is simply a continuation of the most recent General Audiovisual Communication Law, which came into force two years ago and aimed to level the playing field for all players in the audiovisual market, from traditional ones such as radio and television to the new protagonists that were rapidly gaining ground in the media: influencers.

However, when this law was first introduced, one key issue remained unresolved: who could actually be considered an influencer?

Two years later, the legislator has addressed this question and established the thresholds that define “users of special relevance who use video-sharing platform services”, in other words, the influencers to whom the General Audiovisual Communication Law applies.

Hidden advertising? No, thank you

Before distinguishing which types of influencers are affected by the new law, it is important to clarify that, regardless of the type of creator involved, they are obliged to clearly identify any communication intended to promote a good or service as advertising whenever it has been paid for by a business or professional.

Otherwise, it would be considered an unfair form of misleading advertising.

Requirements to be considered an “Influencer” under the General Audiovisual Communication Law

The legislator who developed this new regulation has drawn the line between different types of influencers based on purely quantitative criteria: revenue and audience size.

Accordingly, the following will be considered “users of special relevance” (influencers) if they simultaneously meet all of these requirements:

300. I) They obtain annual gross income equal to or greater than 300,000 euros. For these purposes, only income derived exclusively from their activity as influencers will be counted, although monetary or in-kind remuneration will also be taken into account, as well as income coming from platforms, clients, or their own audience, such as subscriptions or contributions.
301. II) They are the editorially responsible party for their content.
302. III) During the previous year, they reached 1,000,000 followers on a single platform or 2,000,000 followers across all platforms combined.
303. IV) They publish at least 24 videos per year.
304. V) The purpose of the content made available on the platforms is to inform, entertain, or educate, and the main objective of the service is the distribution of audiovisual content.
305. VI) The content is offered through electronic communications networks and is established in Spain.

Anyone who meets these requirements must comply with the obligations set out in the General Audiovisual Communication Law and register with the State Register of Audiovisual Communication Service Providers. A heads-up for influencers: if you meet these requirements, you have less than a month to complete the registration, as the regulation only allowed two months from its publication in May to complete this process.

Protection of minors

The main purpose of this regulation is to protect the most easily influenced consumers, in this case, minors.

To this end, it establishes that influencers must provide underage users with sufficient and unambiguous information about the potentially harmful nature that certain content may have on their physical or moral development. They must also implement the following measures:

• Separate content that includes pornographic scenes or gratuitous violence.
• Provide parental control mechanisms or digital coding.
• Be part of the Co-regulation Code for content classification.
• Avoid encouraging minors to purchase or rent products or services by exploiting their inexperience or credulity, or encouraging them to persuade their parents or third parties to purchase advertised products or services.

Similarly, the law addresses concerns about the influence of social media on body image and the mental health of young people. As a measure to mitigate this issue, it prohibits influencers from directing messages at minors that promote body worship or rejection of self-image. This includes, for example, commercial communications for weight-loss products, surgical interventions, or aesthetic treatments that appeal to social rejection based on physical appearance or suggest success linked to weight or aesthetics.

Limits on influencer advertising

Influencers affected by this regulation must comply with prohibitions already applied to other media, such as the ban on advertising tobacco products, including electronic cigarettes, refill containers, and herbal smoking products. Time restrictions also apply to the promotion of certain products or services, such as gambling activities, except lotteries, as well as esotericism and pseudosciences.

Likewise, with regard to alcoholic beverages, this group of influencers must follow the traditional rules and therefore refrain from using the following types of messages:

1. a) Addressing minors specifically or depicting minors consuming alcoholic beverages.
2. b) Associating consumption with improved physical performance or driving vehicles.
3. c) Giving the impression that consumption contributes to social or sexual success, or associating it with ideas or behaviors that express personal, family, social, sporting, or professional success.
4. d) Suggesting that alcoholic beverages have therapeutic properties, stimulating or sedative effects, that they help resolve conflicts, or that they provide health benefits.
5. e) Encouraging excessive consumption or portraying abstinence or sobriety negatively.
6. f) Highlighting alcoholic content as a positive quality of the beverage.

Additionally, alcoholic beverage content must include the message “moderate and low-risk consumption” and be published in accordance with the established time slots based on alcohol content.

On the other hand, the law expressly prohibits the promotion of medicines and healthcare products that do not comply with the limits established in the regulations governing advertising and health-related activities, in particular Royal Decree 1907/1906, such as claims related to cancer cures, specific weight-loss properties, or obesity treatments.

The law also emphasizes the obligation for these users to respect basic principles such as respect for human dignity and gender equality, as well as the image of women and children.

However, the wording of the regulation in this regard is quite abstract, and therefore, at present, it is not possible to clearly define which actions might violate these principles.

Who is excluded from the scope of the General Audiovisual Communication Law?

The law expressly excludes the following:

a) Educational or scientific institutions when their activity falls within their official remit or is of an educational nature.

b) Museums, theaters, or any other cultural entity when presenting their programming or activities.

c) Public administrations or political parties for informational purposes or to present their functions.

d) Companies and self-employed professionals when promoting goods and services produced or distributed by them.

e) NGOs for self-promotion and for presenting activities carried out in line with their objectives.

In addition, the regulation implicitly excludes a large percentage of influencers who, despite their significant reach, are not subject to the law because they do not meet the established thresholds.

This has sparked considerable debate about the appropriateness of this regulation. Is the number of influencers affected by this law representative of the total influencer ecosystem? Should segmentation be based on channel type or audience?

In our view, it cannot be ignored that an influencer with an audience of 400,000 followers can have significant influence over consumers, especially those who are more easily influenced, such as minors.

However, despite the criticism, we understand that this regulation is ultimately a starting point that will need to adapt to an environment that is constantly changing and evolving.

What are the consequences of non-compliance?

Failure to comply with the obligations set out in the General Audiovisual Communication Law may be classified as a serious or minor infringement, depending on the circumstances of each case, such as who is affected or the economic benefit obtained.

That said, the legislator has sought to send a strong message of responsibility and severity regarding infringements and has established particularly significant penalties, ranging from 10,000 euros to 1,500,000 euros.

In the event of an infringement, responsibility will lie with the influencer, although the platforms on which the content is published must cease transmission at the first request of the audiovisual authority.