Keys of the new “Code of conduct on the use of influencers in advertising”

The Spanish advertising self-regulatory organization (Autocontrol) and the Association of Advertisers (AEA) recently published the final version of the “Code of conduct on the use of influencers in advertising” (the “Code”), governing influencer advertising in social media from 2021.

Although Spain lacks specific regulation in this field, the Code is published in a context where influencers are probably the main means of advertising in today’s society. However, a few months ago, Autocontrol’s Advertising Jury issued a decision on an influencer’s post, assessing if the posted image was an advertisement.

The Code brings good news for influencer advertising, since, until now, the line between (i) lawful, fair and truthful advertising and (ii) unlawful advertising was unclear. There was legal uncertainty in the advertising industry, but the Code clarifies the use of influencers in advertising and introduces interesting developments in the use of social media by influencers to advertise goods and services.

The Code seeks to ensure compliance with a core principle of lawful advertising: identifying that the content is an advertisement. Under this principle, the target audience must know if any communication or post has promotional or advertising purposes. The Code classifies as advertising any content meeting all of the following requirements. The content must be:

• Intended to advertise products or services;
• disclosed in the context of cooperation relationships or reciprocal commitments in exchange for payment by the advertiser or its representatives;
• subject to editorial control by the advertiser or its representatives (meaning that they previously establish all or part of the content or approve it).

According to the Code, payment means, among other things: direct payment (or indirect payment through agencies), gifts, free tickets to events, provision of services, gift vouchers, gift packages and trips. Consequently, the delivery of any goods or services, even if there is no payment in cash, qualifies as payment for the influencer.

Once any mention or content has been identified as an advertisement, the Code provides recommendations in case it is not clear or evident that the content is an advertisement. The Code suggests using general labels like “advertisement,” “ad,” “in association with,” “sponsored by,” or more explicit labels depending on the specific relationship with the brand. Labels must be clearly visible. They should not be hidden among other text and mentions preventing consumers from easily identifying the advertising content. The Code provides an annex with examples differentiating between social media where it must be specified that the content is an advertisement.

Note that the Code defines average consumer (a significant concept in advertising regulations) in the context of influencer advertising as “active and aware of new information technologies, reasonably well informed and observant, able to access and understand digital media and self-sufficient to search, differentiate and adapt online content based on his/her preferences or interests when browsing.”

The Code will apply to companies affiliated to AEA and Autocontrol, as well as to other companies that voluntarily adhere to the Code. Influencers may also adhere to the Code. All companies and influencers subject to the Code must refer to the Code in any agreements governing influencer advertising.

Advertisers and influencers have more than two months to adapt to this new regulation, since the Code of conduct on the use of influencers in advertising will enter into force on January 1, 2021.Then, we will verify if the Code achieves its purpose: fulfilling the principle of authenticity in marketing communications, reducing the risks of covert advertising in influencer posts.

Authors: Alicia Costas and Jorge Monclús