SPAIN Law and Practice Contributed by: Rubén Canales and Ignacio Temiño, Abril Abogados
5. Social/Digital Media 5.1 Special Rules Applicable to Social Media Advertising practices in social media are covered by the general rules applicable to advertising. These require advertising to be truthful, legal, honest and fair, and must not mislead the consumer or user. Both the advertiser and the advertising message must be clearly identifiable. Surreptitious advertising is strictly prohibited. The Autocontrol Code of Advertising Practice states that advertising in electronic communications media must be conducted with a sense of social responsibil - ity and should not exploit the good faith of the audi - ence. Furthermore, it prohibits content which could be discriminatory (for reasons of nationality, race, sex, sexual orientation, religious or political convictions), is against personal dignity or incites the commission of unlawful acts. Advertising communications in electronic media must respect the intellectual and industrial property rights of third parties other than those of the advertiser. Other specific requirements on transparency are applicable to digital advertising as a consequence of the EU Digital Services Act. Social media shall be subject to compliance with the provisions of the General Audiovisual Communication Act to the extent that they can be subsumed under the definition of “video-sharing platform service” – ie, where the provision of user-generated programmes and videos can be considered an essential function of the social media or network services provided that such audiovisual content is not merely ancillary or constitutes a minimal part of the activities of such a service. 5.2 Liability for Third-Party Content In general, the advertiser is responsible for the con - tent of its websites and social media channels. In fact, the advertiser would be considered a service provider. Thus, the service provider is obliged, upon obtaining actual knowledge or awareness of illegal activities, to expeditiously remove or disable access to the infor - mation concerned. This obligation applies regardless
of whether the content was posted by the advertiser, their contractual partners, or users of the advertiser’s
website or social media channels. 5.3 Disclosure Requirements
There are no special rules that apply to online disclo - sures and disclosures in social media, so the general rules outlined in 5.2 Liability for Third-Party Content apply. 5.4 Requirements for Use of Social Media Platforms There are no special requirements or restrictions for the use of social media platforms in Spain. Howev - er, all use of social media platforms, in addition to respecting the terms and conditions established by the platform, must respect current legislation and the general principles governing advertising in Spain. 5.5 Influencer Campaigns and Online Reviews 5.5.1 Special Rules/Regulations on Influencer Campaigns The use of influencers in advertising is perfectly valid in Spain. However, it must be taken into account that the content created by influencers is advertising. Thus, the general principles governing advertising in Spain must be observed (legality, truthfulness, honesty, etc). The General Audio-Visual Communication Act estab - lishes that influencers who use video exchange servic - es through a platform are considered to be audiovisual communication service providers and must respect the general principles of audiovisual communication and the obligations for the protection of minors. Influ - encers that meet certain requirements based on the number of followers and income generated must reg - ister in the State Registry of Audiovisual Communica - tion Service Providers. It must be obvious that an influencer’s content is advertising. Usually when labelling ads on social media a hashtag is used, given its function on plat - forms such as Instagram. However, it is the label itself that is important, rather than the use of a hashtag. Any label that an influencer uses to disclose advertis - ing must be displayed upfront (ie, before consumers click through or engage with the content), prominent,
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