Code of Conduct on the use of “Influencers” in advertising

12 January 2021

The widespread use of influencers in social netwoks has made the creation of a code of conduct a mandatory task.

12 January 2021

In recent years we have seen a widespread use of companies’ digital communication strategies using so-called “influencers”; that is, people who are considered to have a high level of influence over the public due to their high number of followers in social networks and/or digital media and interacts through tweets, videos, posts and messages on blogs, among others. This group includes the so-called “social media influencers”: “bloggers”, “youtubers”, “instagrammers” and “facebookers”.

As announced in recent days, on January 1st 2021, the Code of Conduct on the use of “influencers” in advertising, established by AUTOCONTROL, an independent self-regulatory body of the advertising industry in Spain, constituted in 1995 as a non-profit association. It is comprised of advertisers, advertising agencies, media and professional associations. 600 direct members and 4,000 indirect members belong to it; approximately 70% of advertising investment in Spain. Its objective is to work for responsible, loyal, truthful, honest and legal advertising. AUTOCONTROL’s Advertising Jury has been the first private entity accredited by the Spanish Government as an alternative dispute resolution entity and is part of the European Commission’s unified list of accredited entities and the online dispute resolution platform established by the European Union.

The widespread use of influencers in social networks has made a code of conduct on their advertising behavior very necessary, long-awaited by the main players. What may seem at first sight a completely legal practice presents some difficulties in determining what is advertising and what is publishing. The principle of authenticity and the obligation to identify advertising as such can be undermined when using influencers. We must not forget that an influencer has the double condition of consumer and communicator, that is, the influencer creates content in his or her profile that ranges from mere personal recommendations as a consumer -which implies a non-advertising content (edition)-, to content directed and sponsored by the brands that he or she is advertising.

This phenomenon has been analyzed from different points of view, especially among the most acclaimed influencers, as was the case of @Dulceida who uploaded a video on her Youtube channel where she explained what was advertising for her and what was not (she essentially saw no difference between personal recommendations and sponsored advertising). This point of view lies very far from the normative concept, set in Spanish legislation and jurisprudence, which can undoubtedly lead to hidden advertising.

Therefore, it is essential to give way to this Code developed by the Spanish Association of Advertisers (AEA) and the Association for the Self-regulation of Commercial Communication (AUTOCONTROL). The Code responds, among others, to the main questions:

Who does the Code apply to, and why should you adhere to it?

The Code applies to AEA and AUTONCONTROL member companies, and other companies that may voluntarily adhere to it. By accepting the Code of Conduct, they undertake to comply with the rules contained therein and to abide by the decisions of the advertising jury in the event of complaints submitted under the Code. It is not binding on non-members, but failure to adhere to it may lead to mistrust among the consumer public. One of the world’s most famous influencers, Chiara Ferragni, has already taken the first step by making public her membership of IAP (Istituto Autodisciplina Pubblicitaria). Furthermore, Code membership may lead to possible penalty reductions in proceedings brought against members (art. 40 LSSI).

What is advertising content?

The Code defines the following as advertising content:

““a. Are aimed at promoting products or services;
b. are disclosed in the framework of reciprocal collaboration or commitments, being the disclosure of such content for payment or other consideration for part of the advertiser or its representatives;
c. the advertiser or its agents exercise editorial control over the content disclosed (establishing in advance all or part of it and/or validating it)”.

What is meant by consideration?

a. Direct or indirect payment through agencies
b. Payment in kind, which includes free delivery of a product, free tickets to events, free provision of a service, gift vouchers, gift bags and travel expenses.

How to mention? Does the hashtag #Ad work?

The Code states that the advertising nature must be clearly stated in an immediate, appropriate and explicit way. It also sets out some examples or recommendations of what would be correct: (“advertising”, “publi”, “in collaboration with” or “sponsored by”, or “Ambassador of [brand]”, “Thanks to [brand]”, “Gift of [brand]”, “Sponsored trip”, etc.) In the same way it also establishes the mentions that would not be correct: type “information”, “legal” or similar), (such as “Colab”, “Sponso” or “sp”).

However, nothing is said about the famous hashtag #ad which was already evaluated in an earlier AUTONCONTROL decision of 28 November 2019 against the influence of Paulina Erikson. On the contrary, there is a general requirement not to establish indications that require action by the user (e.g. clicking), and unclear indications. Everything indicates that under these premises the commonly used element #ad would fall under this category.

In conclusion, this Code will bring greater legal certainty to both brands (companies) and influencers, but above all, greater protection for consumers, ensuring that advertising content meets the standards of loyalty, truthfulness, honesty and legality. Thus, regardless of whether an influencer likes the product being promoted or not, consumers will always be informed of its advertising nature. When assessing a certain product and for the purposes of individual and corporate responsibility, it is vital to differentiate between brand orchestrated content and content generated at the influencer´s own risk.

Lucía Martín-Sanz

Abogada. Departamento de Derecho Digital.

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