Proposed Spanish influencer law criticized as a missed opportunity to protect minors

Following in the footsteps of France and Italy, Spain has released draft laws that would impose tough penalties on influencers publishing harmful content. 

Set to come into force in the first quarter 2024, the proposed laws seek to protect minors from harmful content. Influencers with 2M+ followers would be qualified as “users of special relevance” and restricted from advertising products including alcohol, tobacco, slimming products or products promoting unrealistic body image, and cosmetic surgery.  

Gambling and betting advertising by users of special relevance will be restricted to publication between 1am and 5am. 

But unlike laws in France, which apply to any influencer deriving a commercial benefit from content creation, the Spanish regulations for restricted content would apply only to influencers with 2M+ followers and who earn at least €500,000 annually from content creation. 

(All Spanish influencers, regardless of the size of their communities, are obliged to clearly label brand collaboration content under changes made to the Unfair Competition Law in 2022.)

“Recognition that the growing influencer marketing industry in Spain should be subject to specific regulations to protect users is a step in the right direction, but this law doesn’t go far enough,” comments Kolsquare Founder and CEO Quentin Bordage. 

“The proposed laws do not reflect the market reality. It is disappointing that lawmakers have not seen fit to apply regulations aimed at protecting minors from harmful content to smaller creators, who today account for significant brand investment.” 

How many creators will be impacted by the Spanish influencer law?

According to Koslquare data, there are just 96 KOLs in Spain with 2M+ followers on YouTube with at least 5% of their audience in Spain, and 26 KOLs with 2M+ followers on YouTube with at least 30% of their audience in Spain.  

On Instagram, there are 179 KOLs with 2M+ followers and at least 5% of their audience in Spain, declining to 74 KOLs who have at least 30% of their audience in Spain. 

According to the IAB Spain, advertising investment in digital media rose 10% to €4.5bn in Spain in 2022, with €64m invested in influencers. 

“Our data shows there are around 117,000 KOLs with at least 5,000 followers and 30% of their audience in Spain. Regardless of the size of their communities, all of them have the potential to partner with brands and promote harmful products through a variety of platforms and content formats,” comments Bordage. 

What do the proposed Spanish influencer laws say?

The draft Royal Decree aims to clarify provisions first laid out in the General Law for Audiovisual Communication (LGCA) of 2022. The LGCA established the concept of vloggers and social media content creators as “users of special relevance”, recognizing them as service providers and subject to the advertising provisions under the law.

Fines for failing to comply with the LGCA start at €10,000, rising to as much as €1.5m, depending on income. 

But as the name suggests, the law applies to audiovisual content, giving rise to questions around whether it would also apply to users of special relevance posting text and static photos. 

Under the LGCA, users of special relevance are defined as:

• Participating in video services through a platform;
• Derive a significant income from their activity;
• Reach a significant part of the general public with their services;
• Aim to distribute audiovisual content; 
• The communication network used to distribute audiovisual content is established in Spain. 

Spanish marketing professionals and content creators have long been advocating for a specific legal framework to recognize influencer marketing as a profession. 

Indeed, Spain has been one of Europe’s early movers on the need to regulate influencer marketing. 

In 2019, IAB Spain released the first Influencer Marketing White Paper that defined the influencer marketing ecosystem and influencer marketing strategies. A year later, Spanish advertising self-regulatory organization Autocontrol released the Code of Conduct on the use of Influencers in Advertising. 

Madrid-based agency Marketing Paradise Head of Social Media Shelia Martin said measures designed to protect the public from harmful practices on social media are essential, but denounced the limited scope of the proposed regulation. 

“We think the requirements that have been established to define “users of special relevance” who will be subject to the law, are debatable,” Martin told Spanish publication Strategy In Digital. 

“Any profile making advertising content, regardless of turnover or community size, should be subject to certain measures. For example, those aimed at eliminating covert subliminal advertising or restricting the promotion of products that are harmful to health.”