SPAIN Law and Practice Contributed by: Rubén Canales and Ignacio Temiño, Abril Abogados
tices are prohibited because any conduct containing false information or which, although truthful, by its content or presentation leads or is likely to lead users to erroneous conclusions and is therefore likely to alter their economic behaviour, is considered to be unfair by reason of being misleading. From a data protection point of view, it is also prohib - ited to process personal data using dark patterns. The Spanish Data Protection Agency, after several warn - ings about the use of dark patterns, imposed its first sanction against this practice in 2023, issuing a fine of EUR5,000. 3.4 Sponsor Identification and Branded Content Branded content generated by a company is not expressly regulated but is unequivocally considered “advertising” under the General Advertising Act. In this context, the Unfair Competition Act makes it clear that promotional practices disguised as infor - mation in the media – where the advertiser has paid for the promotion – are deemed misleading if it is not made obvious to the consumer, either through con - tent, images, or sound, that it is advertising. There - fore, consumers must always be able to easily identify advertising content and distinguish it from editorial or other types of content. Advertorials are explicitly classified as misleading advertising. According to the Spanish Act of Information Society Services, “commercial communications by electronic means shall be clearly identifiable as such and the natural or legal person on behalf of whom they are made must also be clearly identifiable”. In the case of commercial communications sent by electronic means, the communications must include, at the start of such communication, the word “advertising” or “advertisement”. Failure to comply with these pro - visions on commercial communications, promotional offers and contests constitutes a minor infringement, punishable by a fine of up to EUR30,000. In the case of TV advertising, the General Audio-Visual Communication Act requires that any type of content that, when broadcast, could confuse the viewer about its actors or characters must permanently include, in
a way that is clearly legible, the word “advertising”. In addition, when the advertisement is included in the form of product placement, an indication that the con - tent constitutes advertising must be included. Finally, all influencers must make it clear if there is a sponsor or company paying for their endorsements. Spanish law requires the words “advertising” or “ad” (“ publicidad” or “publi ”) to be included in Spanish when influencers are participating in sponsored cam - paigns. 3.5 Special Rules for Native Advertising Information is a fundamental part of any advertising action. The recipients of native advertising must be clearly informed that they are dealing with advertis - ing, and not with any other type of non-advertising content. This does not mean that the word “advertising” must always and in every case appear, nor that it must be mentioned in every image, but that the recipient must have sufficient information to know that he or she is indeed looking at advertising. It must also be clear who the advertiser or brand behind the adver - tising action is. Failing to do so can be considered misleading advertising under the Unfair Competition Act, which states that “practices that include com - munications to promote a good or service as informa - tion in the media, with the advertiser paying for such promotion, without making clear in the content or by images or sounds clearly identifiable to the consumer or user that this is advertising content” are considered misleading advertising.
4. Comparative Advertising and Ambush Marketing 4.1 Specific Rules or Restrictions
According to the Unfair Competition Act, public com - parison, including comparative advertising, by means of an explicit or implicit allusion to a competitor is permitted if it meets the following requirements: • The goods or services being compared must serve the same purpose or satisfy the same needs.
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