Will Spain regulate the influencer profession?

In recent years, new professions have emerged for which our laws and regulations are not prepared. This is the case of the figure of the influencer, the streamer and/or the youtuber, who in principle could be included as creators of audiovisual content, although the context is more complex.

In recent years, new professions have emerged for which our laws and regulations are not prepared. This is the case of the figure of the influencer, the streamer and/or the youtuber, who in principle could be included as creators of audiovisual content, although the context is more complex.

In this context, our neighbouring country has taken the first step in Europe and has recently passed a law on influencer activity with the aim of regulating the use that these users make of social networks and platforms.

This new regulation legally recognises the activity of commercial influencers in electronic media and defines them as natural or legal persons who “in exchange for remuneration, communicate to the public by electronic means content aimed at promoting, directly or indirectly, goods or services, or who for any reason exercise commercial influence by electronic means”, services or who, for any reason, exercise the activity of commercial influence by electronic means”, specifying that, when this activity is carried out by a minor under 16 years of age, it must be their employer or, failing that, their parents or the persons in charge of their parental authority, who assume the responsibilities arising from the content they publish on social networks and platforms.

The French law provides for both measures to support these professionals and to protect the consumers of such content, in order to prevent the adoption of malpractices that may develop by taking advantage of the influence they exert over them.

Consumer protection measures include bans on the promotion of certain goods and services where the protection of public health is endangered by the promulgation of information on aesthetic, pharmacological and surgical techniques, methods and treatments.

Similarly, the commercial promotion of products that could be dangerous or fraudulent, such as certain financial services, sports betting, or those containing, even partially, nicotine, is also prohibited.

French influencers will not be able to share content that includes interactions with animals and whenever they are promoting goods or services in collaboration with brands, they must clearly specify that it is advertising so that users can be aware of the content they are viewing.

In addition, this law goes a step further and obliges these professionals to indicate whether they have used filters in the photographs or videos they share on their social networks, if they have retouched them, or even if the images in question have been created with artificial intelligence.

The purpose of these measures is to try to achieve the greatest possible transparency and information about publications for users who consume the content of these new professionals.

Finally, the law establishes a system of penalties for infringements of the measures and provisions of the law.

Specifically, the influencer who fails to comply may be imposed various sanctions consisting of fines of up to 300,000 euros, as well as a temporary or permanent ban on the exercise of their activity, along with the possible denial of access to the platforms where they share the content.

And for cases where deceptive commercial practices of notorious gravity have been committed, the French law includes the imposition of custodial sentences (imprisonment) with a maximum duration of two years.

Now we have to wait and see if our legislative power follows in France’s footsteps and regulates this profession, since the reality is that there is a lot of misinformation on the networks and sometimes information is broadcast that can be harmful to the consumer, which we believe makes it necessary to have a regulation and a standard that provides a minimum basis for the content that can be published.

Article written by Cynthia Zárate