Regulation of Content and Advertising by Influencers or Content Creators

In recent years, the dissemination of audiovisual content and advertising through social media has grown exponentially, especially for videos generated by users and uploaded to platforms either by them or through third parties.

For this reason, a regulation has been approved to regulate their activity in two essential areas: the protection of minors and the dissemination of advertising content by European standards set in recent years. This rule defines these users of particular relevance and regulates their activity, requiring them, among other things, to explicitly identify advertising and tag content by age.

This way, compliance with the General Law of Audiovisual Communication of 2022 for this type of content is ensured, and consumer protection in general is reinforced.

An ‘influencer’ is someone capable of garnering attention and influencing the decisions of others due to their authority, knowledge, position, or relationship with their audience. They have followers in a specific niche with whom they actively interact. This also makes them valuable assets in developing communication, advertising, or marketing campaigns.

Influencers compete with other agents in the audiovisual and advertising market and possess specific characteristics that liken them to providers of audiovisual communication services. Therefore, the new regulation seeks to extend certain obligations that apply to the rest of the sector to this group, thereby ensuring balance in the audiovisual ecosystem.

The new regulation approved by the Government applies to those who use video-sharing services via platforms and are designated as “users of special relevance.” To be considered as such, the following requirements must be met:

• The first of these refers to income. This must be equal to or greater than 300,000 euros and derive exclusively from the users’ activity across the video-sharing services they use. This will consider advertising revenues, payments made by the platforms themselves, fees and direct payments made by their audience, contributions from public entities, and any other income derived from their activity as content creators.
• The second requirement relates to the audience, which must be significant. Specifically, a user of particular relevance has many followers equal to or greater than 1,000,000 on a single video-sharing service via a platform or several followers equal to or greater than 2,000,000 in aggregate across the platforms where they are active.

Lastly, 24 videos must have been published or shared in the previous calendar year, regardless of duration.

In compliance with the General Law of Audiovisual Communication, content creators who meet the requirements of the previous section are subject to the following obligations:

• The prohibition of advertising tobacco.
• The prohibition of advertising medicines, medical products, or methods with a purported health purpose.
• The regulation of alcohol advertising.
• The regulation of gambling.
• The protection of minors. It will be necessary to tag content by age.

Finally, the Royal Decree obliges users of special relevance to register in the “State Registry of Providers of Audiovisual Communication Services, Providers of Video Sharing Services via Platform, and Providers of Audiovisual Communication Services Aggregation,” as stipulated in Article 39 of the General Law of Audiovisual Communication. For this purpose, two months from May 2, 2024, is provided.