77% of the publications reviewed by the Subdirectorate General for Inspection and Sanctioning Procedures do not comply with the obligation to identify the advertisements. The fines could exceed 100,000 euros.
Warnings to major influencers
The Ministry of Consumer Affairs has carried out an investigation on the main social media platforms to identify possible cases of covert advertising by influencers and, as a result, has sent penalty warnings to major communicators after finding that they have disseminated advertising messages without the corresponding warning that they are advertisements for which they receive some kind of consideration.
The Subdirectorate General for Inspection and Sanctioning Procedures of the Directorate General for Consumer Affairs, through the Internet Observatory, has been in charge of carrying out a massive sweep of online video channels, since, at present, the commercial activity carried out by this type of public profiles of special relevance does not yet have a specific regulation in force in Spain. Therefore, the consumer authorities are competent to monitor them whenever the interests of consumers may be affected.
As a preliminary result of this sweep of the platforms, the Subdirectorate General for Inspection and Sanctioning Procedures has detected an average non-compliance with the obligation to identify publications with advertising content of 77.75%.
In view of this, Consumo has contacted the potentially offending public profiles and urged them to cease their behaviour, also providing them with the Code of Conduct on the use of Influencers in Advertising. The aim is to provide them with a catalogue of good practices in the sector, without prejudice to the possibility of initiating disciplinary proceedings where appropriate.
The public profiles that have received the Consumer Affairs notification have a special impact on consumers (due to the number of followers and views of their publications) and, in particular, on children, the sector most vulnerable to commercial communications. Among those notified, there are influencers with more than ten million followers and those responsible for and/or guardians of kids influencers, i.e. content creators who are minors.
According to the Unfair Competition Act, unfair commercial practices are considered to be those that include, as information, communications that are really to promote a good or service, with the employer or professional paying for such promotion, without it being clearly specified in the content (through clearly identifiable images or sounds) that it is advertising content.
In these cases, the influencer may be considered an infringing subject, regardless of whether the advertising company is also an infringing subject, due to its participation in disguised commercial communication.