In the last few years, companies have discovered a new type of advertising strategy called influencer marketing, where the influencer as a brand ambassador represents and recommends their advertising offer on their profile pages on different social media such as Instagram, Twitter, Youtube, etc.
In Spain, the legal aspects of influencer marketing are regulated, among others, by the Law against Unfair Competition, the General Advertising Law and the General Law for the Defence of Consumers and Users, which stipulate that any advertising content must be recognizable as such by consumers, so that they are not deceived or induced to modify their economic behaviour inadvertently. But none of the legal provisions clearly define how informative publications should be separated from advertising publications. These legal provisions simply stipulate that the difference must be “perceptible” and “clearly identifiable” to the consumer, so that it still exists a lot of uncertainty for companies and influencers about the correct and legal use of influencer marketing.
The Code of Conduct on the use of influencers in advertising, developed by the Spanish Association of Advertisers “AEA” and the Association for the Self-Regulation of Commercial Communications “AUTOCONTROL”, came into force on January 1st, 2021.
This code stipulates ethical standards that should be binding for members of both associations, as well as for all other advertisers in the industry and influencers who wish to join the code on a voluntary basis.
The Code includes six ethical rules to ensure that the identification of the advertising nature of a publication or post for advertising purposes is the basic principle of all legal advertising. The main idea is that companies introduce these rules in their contracts signed with influencers.
The Code provides that an advertising is when the posts are aimed at the promotion of products or services; are disclosed within the framework of partnerships or reciprocal commitments, being the disclosure of such content the object of a payment or other consideration by the advertiser or its representatives; and when the advertiser or its agents exercise editorial control over the disclosed content. Consideration refers to direct or indirect payments by agencies, free delivery of a product, free tickets to events, free provision of a service, gift certificates, gift bags and travel.
If the advertising nature of the post is not clear and obvious in terms of the reference or the content itself, it should be identified by using general indications such as “advertising” “ad”, “in collaboration with” or “sponsored by” or others. It is important that this mention is clearly visible to the consumer.
In addition, the Code defines what should be understood as the average profile of the consumer accustomed to following an influencer: “an active and knowledgeable consumer of new information technologies, normally attentive and informed, with sufficient capacity to access and understand digital media and the autonomy to search, discriminate and adapt the contents of the network in their browsing process according to their tastes or interests”.
Advertisers must establish internal control measures to ensure compliance with the Code of Conduct. There will be an “Advertising Jury” where the AEA, AUTOCONTROL, the public administration, companies, consumer associations and any individual consumer may file complaints for violations of the rules of the Code of Conduct. The resolutions issued by the Advertising Jury in application of this Code shall be immediately communicated to the parties concerned for their enforcement.
We welcome this new Code of Conduct as it represents a major step forward in achieving greater commercial and legal certainty in influencer marketing and helps companies and influencers to distinguish between misleading and legal advertising.