Influencers and brands: legal responsibilities in commercial collaborations

Influencers and brands: legal responsibilities in commercial collaborations

Influencer marketing has become a common tool for digital brands, startups and e-commerce businesses. However, the supposed naturalness of a post on Instagram, TikTok, YouTube or Twitch does not remove its advertising nature where there is consideration, whether monetary, in kind, through discounts, gifts, trips, affiliate commissions or any other benefit, and the content has a promotional purpose.

In Spain, these collaborations must be assessed in light of the General Advertising Act, the Unfair Competition Act, the General Audiovisual Communication Act and, where applicable, consumer, data protection and digital services regulations. The Unfair Competition Act prohibits misleading practices and unlawful advertising, while the General Advertising Act regulates misleading advertising and other forms of unlawful advertising. Furthermore, since the approval of Royal Decree 444/2024, certain creators with large audiences and high revenues may be considered “users of special relevance”, thereby becoming subject to specific obligations regarding audiovisual matters, the protection of minors and commercial communications.

In addition, there is the Code of Conduct on Advertising through Influencers, promoted by the Spanish Association of Advertisers (AEA), AUTOCONTROL and IAB Spain, whose 2025 version reinforces the clear identification of advertising content and the responsibility of the various operators involved in the campaign.

Key clauses that should not be missing from an influencer agreement

An influencer agreement should not be limited to setting out the number of posts and the price. It must operate as a tool for the legal, reputational and operational control of the campaign.

First, it is essential to define the subject matter of the collaboration precisely:

• Platforms
• Formats
• Number of posts
• Dates
• Key messages
• Products included
• Links
• Discount codes
• Hashtags
• Duration of the campaign

It is also advisable to regulate whether the brand will have a right of prior review, approval or request for amendments, particularly in sensitive sectors such as health, food, minors, finance, gambling, cosmetics or sustainability.

Secondly, an express advertising disclosure clause should be included. The influencer must undertake to state clearly, visibly and immediately that the content is advertising, using expressions such as “Advertising”, “Paid collaboration”, “Sponsored by” or the tools made available by each platform. The notice should not be allowed to be hidden among hashtags, placed at the end of expandable text or phrased ambiguously. The new 2025 Code of Conduct specifically insists that advertising content must be recognisable to users from the outset.

Clauses relating to the originality of the content, respect for intellectual and industrial property rights, non-infringement of third-party rights and the prohibition on using unauthorised music, images or trade marks, among others, are also essential.

The brand, for its part, must regulate the subsequent use of the content, namely whether it may repost it, use it in paid media, include it on its website or adapt it to other formats. This assignment must necessarily specify the rights assigned, the territory, the term, the channels of exploitation and any additional remuneration.

Finally, the agreement should provide for standard contractual obligations, among which confidentiality, exclusivity or non-compete obligations, where necessary, penalties for breach and indemnity against claims should be highlighted, among others.

Cases in which the brand has been held liable for the influencer’s content

One of the most common mistakes is to assume that liability lies solely with the influencer because they are the person publishing the content. In reality, where there is an organised campaign, the brand may be linked to the message disseminated, particularly if it has commissioned, approved, encouraged or benefited from the communication.

AUTOCONTROL has already analysed campaigns in which several influencers promoted sports betting services through Instagram stories, identifying issues relating to covert advertising and compliance with the sector-specific regulations applicable to gambling. These types of decisions show that, where there is a coordinated strategy, the campaign must be assessed as a whole and not as a collection of isolated posts.

In Spain, moreover, the new 2025 Code of Conduct introduces a logic of shared responsibility among advertisers, agencies, representatives and influencers. A company will be better positioned to defend itself if it can prove that it gave clear instructions, implemented control measures and that the infringement was isolated and contrary to its instructions.

How to protect your startup when a campaign goes wrong

For a startup, an influencer campaign can be a highly effective way to gain visibility, but it can also become a problem if the message is published without control or fails to comply with the applicable regulations.

The first step is to choose the influencer carefully. Beyond the number of followers, the startup should assess whether the influencer’s profile fits the brand, whether their way of communicating is consistent with the product and whether they convey trust to the audience targeted by the campaign. A poor choice may mean that the issue lies not only in a specific post, but in the very association between the brand and the creator.

Once the profile has been selected, it is important for the brand to provide clear instructions. The influencer must know what they may communicate, which messages should be avoided and how the collaboration must be identified as advertising content. This is particularly relevant where the product belongs to sensitive or regulated sectors, in which an imprecise statement may create incorrect expectations or even give rise to claims.

It is also advisable for the startup to be able to review the content before publication, at least in relevant or higher-risk campaigns. This review is not intended to undermine the influencer’s natural tone, but rather to avoid the most common mistakes, such as exaggerated promises, unverified claims or insufficient advertising disclosure.

Finally, the startup should keep a record of the instructions provided and the versions ultimately approved. If the campaign gives rise to a claim, this traceability will make it possible to demonstrate that the company acted diligently and adopted reasonable measures to prevent breaches.