77% of the publications reviewed by the Subdirectorate General of Inspection and Sanctioning Procedure do not comply with the obligation to identify the advertisements. The fines could exceed 100,000 euros.
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Penalty warnings
The Ministry of Consumer Affairs has carried out an investigation in the main social media platforms to identify possible cases of covert advertising by influencers and, as a result, has sent penalty warnings to large communicators after finding that they have disseminated advertising messages without the corresponding notice that these are ads 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 of 77.75% non-compliance with the obligation to identify publications with advertising content.
In view of this, Consumo has contacted the potentially infringing public profiles and has urged them to cease their behaviour, also providing them with the Code of Conduct on the use of Influencers in Advertising. The objective is to provide them with a catalogue of good practices in the sector, without prejudice to the possibility of initiating disciplinary proceedings if necessary.
The public profiles that have been notified by Consumo have a special impact on consumers (by number of followers and views of their publications) and, in particular, on children, the most vulnerable sector to commercial communications. Among those notified, there are influencers with more than ten million followers and those responsible and/or guardians of kids influencers, i.e., content creators who are minors.
According to the Unfair Competition Law, unfair commercial practices are those that include, as information, communications that are really to promote a good or service, paying the businessman or professional for such promotion, without it being clearly specified in the content (through clearly identifiable images or sounds) that it is an 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 the disguised commercial communication.