Will influencers have to comply with the new General Law on Audiovisual Communication?
The Congress of Deputies has recently approved the General Law on Audiovisual Communication.
This legislative initiative transposes the European directive on the provision of audiovisual communication services to the Spanish legal system in view of the evolution of the market reality, in which there are new agents and audiovisual services in accordance with digital technologies. The regulation will be sent to the Senate to complete its parliamentary processing.
Although it is still a draft bill as it has not yet been approved by the Senate, we have been able to access the draft of this legal regulation, which, together with the National Commission for Markets and Competition (CNMC), has proposed that these content creators be regulated under the draft General Law on Audiovisual Communication, with which they will have to comply with the obligations of protection of minors and advertising rules.
In this regard, the CNMC states in its Report on the draft bill of the General Audiovisual Communication Law of 18 December 2020, published on 13 January 2021, that in more than half of the 657 videos analysed in a monitoring exercise of content created by influencers or vloggers on platforms such as Youtube, Instagram TV, TikTok and Twitch, material was found that implied:
A. Covert commercial communications;
B. An infringement of the regulations on the protection of minors.
In accordance with the above, the Law henceforth refers to these content creators as “users of special relevance”, if they meet the following requirements:
(a) The service provided involves an economic activity whereby the service holder derives significant revenue from his activity in video-sharing services through the platform;
b) The particularly relevant user is editorially responsible for the audiovisual content made available to the public on his service;
(c) The service provided is aimed at a significant proportion of the general public and is likely to have a clear impact on them;
(d) The function of the service is to inform, entertain or educate and the main purpose of the service is the distribution of audiovisual content;
(e) The service is offered over electronic communications networks and is established in Spain in accordance with Article 3(2).
Secondly, the second point of the article sets out the rules and obligations by which they must govern their activity:
i. Observance of the principles of dignity, gender equality and image of women, literacy, self-regulation, intellectual property and correlation, as well as favouring an adjusted, respectful, appreciative, inclusive and stereotype-free image of persons with disabilities.
ii. Protection of the physical, mental or moral development of minors, with reference to content that could be harmful to that end.
iii. Respect for the rules contained in Chapter IV on “Audiovisual commercial communications” of Title VI when marketing, selling or organising the commercial communications that accompany or are inserted in their audiovisual content.
However, according to the second revision of the legal text, video sharing platforms such as Instagram, YouTube or TikTok, would only be considered audiovisual service providers when they are established in Spain, something that does not happen, and which, therefore, could make it easier for them to continue in a legislative limbo in our country.
Therefore, we must wait for the General Law on Audiovisual Communication to become legally effective to see if these new rules of the game are sufficient to bring about a change in the dynamics of influencers and vloggers and, ultimately, to turn the platforms into a safer and more honest space.
Letslaw es una firma de abogados internacionales especializada en el derecho de los negocios.