Legal advice for affiliate marketing in Spain

Legal advice for affiliate marketing in Spain

At Letslaw, we outline the legal framework applicable to affiliate marketing, as both advertisers and affiliates must understand the lawfulness of their marketing practices.

Affiliate marketing remains one of the most effective forms of digital advertising. This model involves various technical elements and multiple stakeholders working in coordination to deliver measurable results.

Key legal considerations before launching an affiliate campaign

At a minimum, an affiliate marketing campaign requires an advertiser and an affiliate, although it is common for intermediaries, such as affiliate networks, to act as facilitators between both parties.

From a technical standpoint, effective tracking technology is essential, traditionally relying on cookies or pixels, to identify the origin of each lead and correctly attribute commissions. Today, such systems must comply with the GDPR, the Spanish LOPDGDD, and the AEPD’s Guidelines on the Use of Cookies (2023/2025 update). These require prior, informed, and granular consent before installing cookies or similar identifiers.

Below are several legal guidelines to bear in mind, whether you are acting as an advertiser or as an affiliate, under the current regulatory landscape.

If you are an advertiser

In affiliate marketing, advertisers do not pay per impression or click, but per result achieved. One of the main pillars of this model is community-based marketing. If you manage a blog or digital platform with an established audience, affiliate marketing enables you to promote your products and services in a more organic and non-intrusive way.

However, current regulations require greater transparency and shared accountability, so caution is advised when implementing such strategies.

Monitor where your ads are displayed. Contracts should expressly prohibit the publication of your ads on websites that could harm your brand’s image, such as those containing violent, sexually explicit, or unlawful content.

In addition, Real Decreto 444/2024 of 30 April, implementing Article 94 of Law 13/2022 on Audiovisual Communication, introduces the concept of “Users of Particular Relevance” (UER). If your affiliates qualify as influencers earning over €300,000 per year in advertising revenue and have published more than 24 videos in the previous calendar year, they must comply with specific registration and identification requirements.

Legal obligations in affiliate marketing

Lead tracking relies on technical mechanisms that may only be used on the basis of valid user consent. Affiliates must provide proper notice, display cookie banners compliant with AEPD guidelines and offer users an equivalent opt-out option.

Contracts with affiliates must clearly allocate responsibilities for compliance with the GDPR and Spanish LSSI (Law on Information Society Services).

How advertisers can avoid penalties in affiliate programs

Contracts with affiliates or networks should be protective and compliance-oriented, incorporating liability limitation clauses that safeguard the advertiser against potential privacy or cookie violations committed by the affiliate.

It is also advisable to include audit and inspection clauses, data retention obligations for proof of consent, and cooperation clauses for responding to regulatory inquiries from authorities such as the AEPD or consumer protection agencies.

Reserve the right to invalidate leads

To protect against invalid or fraudulent leads, contracts should define what constitutes a valid lead, establish a verification period, and specify the conditions for invalidation (e.g., automated traffic, repeated clicks, or non-converting registrations). Such provisions prevent disputes and potential claims.

Protect your brand assets

Include explicit clauses safeguarding your intellectual and industrial property rights. Affiliates and networks must be prohibited from using your brand name, logo, or creatives beyond the scope of the agreement or from redirecting traffic to competitors.

Furthermore, confidentiality and exclusivity provisions are recommended, particularly when collaborating with multiple networks or affiliate platforms.

If you are an affiliate

Affiliates provide advertisers with the platform on which ads are displayed, earning a commission for each conversion. Beyond maximizing performance, affiliates must now comply with enhanced transparency requirements under the EU Digital Services Act (Regulation (EU) 2022/2065) and industry codes of conduct, such as AUTOCONTROL’s 2025 Influencer Code, which requires all paid collaborations to be clearly and visibly disclosed (e.g., “Advertising”, “Paid Partnership”, or “Affiliate Link”).

Protect your commission rights

Ensure that your contracts include penalty clauses for delayed commission payments. Verify whether the advertiser or network may unjustifiably withhold or condition payments on third-party actions.

Liability for provided creatives

The advertiser must remain fully responsible for the advertising content and creatives provided to you. The contract should explicitly state this and confirm that all materials are lawfully used and free from third-party IP claims. If any infringement occurs, liability should rest with the advertiser.

Limit your financial exposure

Negotiate a limitation-of-liability clause that caps your potential exposure to the amount of commissions actually earned during the collaboration. This significantly reduces financial risks in the event of breach or non-compliance.

If you are contracting with an affiliate network

Carefully review the commission payment clause: it should not make your remuneration conditional upon the advertiser’s payment to the network. In the event of unjustified delay, the network should be obliged to advance your commissions.

Jurisdiction and dispute resolution

If you are a well-established affiliate with bargaining leverage, seek to have the jurisdiction clause set in your country or region of residence. This will simplify your legal defense in case of a dispute.

Contact our team if you require legal advice on digital marketing.