New Influencer Regulation

New Influencer Regulation

On May 2nd, the Royal Decree 444/2024 of April 30th came into force, regulating the requirements for being considered a user of special relevance for video-sharing services through platforms, in accordance with Article 94 of the General Audiovisual Communication Law 13/2022 of July 7th (hereinafter, “Royal Decree 444/2024”). This regulation consolidates and develops the concepts previously introduced in 2022 with the publication of the General Audiovisual Communication Law 13/2022 of July 7th (hereinafter, the “LGCA”).

Royal Decree 444/2024 marks a significant milestone by providing an official definition of the term influencer, leading to important changes affecting users of special relevance in Spain. The main modification is that these individuals now have greater obligations than common users.

What is defined as an influencer?

Within the mentioned regulation, specifically in Article 94.2 of the LGCA, an influencer or user of special relevance is defined as one who meets the following requirements:

• The service they provide involves an economic activity from which they obtain significant income through video-sharing services on a platform.
• They are the editorially responsible party for the audiovisual content made available to the public on their service.
• Their provided service is intended for a significant part of the general public and can have a clear impact on it.
• Their role is not exclusively to promote products; instead, their main service consists of informing, entertaining, or educating, with the primary objective of distributing audiovisual content.
• Their service is offered through electronic communications networks and is established in Spain.

The issue is that this definition presents imprecise terms that can create doubts in the application of the regulation. Specifically, the concepts of “significant income” and “intended for a significant part of the general public” raise questions about the criteria to follow.

What does the new regulation provide?

Royal Decree 444/2024 aims to clarify these concepts, defining the parameters that determine whether an influencer, whether an individual or a legal entity, is considered a user of special relevance using platform-based video-sharing services.

These parameters are as follows:

• In the case of “significant income,” this refers to income equal to or greater than €300,000 gross in the previous year obtained from content generation, whether in monetary or in-kind payment.
• Similarly, content is defined as “intended for a significant part of the general public” and can have a clear impact on it when it cumulatively meets the following requirements:
• Having at least 1,000,000 followers or more on one platform or 2,000,000 or more across all platforms combined.
•  Having published or shared a number of videos equal to or greater than 24 in the previous calendar year, regardless of duration.

Both individuals and legal entities that fit this profile must comply with the obligations established by the LGCA. Among these obligations are:

– Identification of advertising content. These audiovisual commercial communications must be clearly distinguished from editorial content through optical and/or acoustic and/or special mechanisms. A commonly used example in this sector is adding text such as “#advertisement,” “#ad,” “#sponsored,” “#paidpartnership,” among others.

– Prohibition of tobacco advertising.

– Regulation of alcohol and gambling advertising.

– Protection of minors, where users must provide “sufficient and unequivocal information about the potentially harmful nature of the audiovisual content for the physical, mental, or moral development of minors through a content description system, acoustic warning, visual symbol, or any other technical means describing the nature of the content.” This means that if influencers include actions in their content that could be harmful, such as drug use, nudity, alcohol, or foul language, this content should be flagged with a preventive warning.

– Prohibition of promoting body worship and rejection of self-image through audiovisual commercial communications of slimming products, surgical interventions, or cosmetic treatments, which appeal to social rejection due to physical condition or success due to weight or aesthetic factors.

– Registration in the State Register: Article 39.2.g) of the LGCA.

Notwithstanding the above, it is important to note that, regardless of whether a content creator is considered an influencer according to the provisions of Article 94.2 of this Directive, the commercial element is always present whenever the content creator receives any form of compensation, including money, discounts, affiliate link percentages, free products (including unsolicited gifts), trips, or event invitations.