Influencer advertisign: a legal gap looking to be filled

Consumers often focus their attention on the lives of influencers when making purchasing decisions, somehow abandoning the traditional advertising campaigns. As a result, agencies and brands want to work with these players to develop their marketing strategies. There are still various legal aspects that need to be addressed within the framework of this collaboration, although significant efforts are underway.

Regardless of the type and intensity of the collaboration, there is an obvious legal relation between the companies or brands and each influencer. However, there is often no contract between the parties.

Several questions arise in the field of advertising. While it is not a legal vacuum, Spain does not (yet) have a unified regulatory framework providing the necessary legal certainty for these activities—leading in many occasions to surreptitious advertising. There are, however, many rules applicable to these actors.

First, the Information Society Services and Electronic Commerce Act requires that electronic commercial communications and the advertiser—whether a natural or legal person—be clearly identified. Fines for non-compliance can be up to EUR 30,000, but none have been imposed to date. The General Advertising Act and the Unfair Competition Act are also fully applicable to this type of advertising.

Recommendations and codes of conduct

Different institutions have endeavored to strengthen transparency in this area. After the publication of EASA’s “Best Practice Recommendation on Influencer Marketing,” commented in a previous post, the Spanish Association of Advertisers (AEA) together with Autocontrol (Spanish advertising self-regulatory organization or SRO) have submitted to the Secretary of State for Digital Advancement (SEAD) the “Code of Conduct on the use of influencers in advertising,” expected to be published before the end of the year. Although it will only be binding on its members and those influencers and companies in the advertising industry that voluntarily decide to join, the Code will offer a set of rules that can be followed by the entire market. Interactive Advertising Bureau Spain (IAB Spain) has also prepared a guide on certain legal aspects concerning influencer marketing.

This reflects a common practice in neighboring countries: the French and English SROs (ARPP and ASA respectively) have recently published specialized guides on influencer marketing (here and here). The aim is to help influencers communicate responsibly when identifying content that constitutes a commercial communication.

Such an effort seems to follow the path laid out long ago by countries like the United States (US), where the “Endorsement Guides & FAQ For Sponsored Social Media” published by the Federal Trade Commission clearly state the rules for influencers, agencies and brands. In the same vein, the International Consumer Protection and Enforcement Network published the “Guidelines for Digital Influencers.”

Obviously, influencer marketing must comply with the legal framework, however scattered it may be. Promotional or advertising posts on social networks must be identified as advertising according to the relevant guidelines. Otherwise, they might be considered surreptitious advertising. Likewise, the guidelines and codes of conduct are fundamental instruments for an adequate development of this activity.

By Ana Sánchez