SPAIN Law and Practice Contributed by: Rubén Canales and Ignacio Temiño, Abril Abogados
5.5.2 Advertiser Liability for Influencer Content Per the Code of Conduct on the Use of Influencers in Advertising, “advertising content” necessarily implies that “the advertiser or its agents exercise editorial control over the published content, previously estab - lishing all or part of it and/or validating it”. However, the General Audio-Visual Communication Act specifically states that influencers are editorially responsible for the audiovisual content made available to the public through their services. Therefore, both the influencer and the advertiser can be held liable for the content generated by the influ - encer. In fact, it is common to find complaints before Autocontrol directed against both the influencer and the advertiser. Adopting a conservative and strict approach is sug - gested, especially since the General Advertising Law considers the work of influencers as an advertising medium (obliged to respect the limits of illegal adver - tising in all its variants, including surreptitious adver - tising) and the Unfair Competition Act, which regulates surreptitious advertising, emphasises that advertising that lacks transparency about its promotional intent is considered unlawful. 5.5.3 Consumer Reviews Commercial practices where a trader provides access to consumer reviews of goods and services must con - tain information on whether or not the trader ensures that such published reviews have been made by consumers who have actually used or purchased the goods or services. To this end, the trader must provide clear information to consumers on how the reviews are processed. The publication of false or manufacturer-paid reviews and ratings on products for sale on the internet is prohibited, and it is considered an unfair practice to include reviews from consumers without verifying that they have actually purchased the good. The advertiser is solely and exclusively responsible for compliance with the information and accuracy requirements of the reviews. Non-compliance with
these requirements is considered a misleading, unfair practice. The burden of proof regarding compliance with the information and truthfulness requirements of the reviews lies with the advertiser.
6. Privacy and Advertising 6.1 Email Marketing
In Spain, it is forbidden to send advertising or promo - tional communications by email or any other electron - ic means such as text messaging, messaging services apps, etc, that have not been previously requested or expressly authorised by the recipients thereof, unless their data was collected due to a previous business relationship. In any case, in all communications, advertisers must provide users with an easy and free procedure to get data removed at any time (“opt-out option”), and any commercial communication must comply with the information required by law. Failure to comply with these provisions on commer - cial communications constitutes a minor infringement, punishable by a fine of up to EUR30,000. In general, sending unauthorised commercial commu - nications may also constitute a breach of data protec - tion legislation. Individuals are entitled to file claims before the Spanish Data Protection Agency ( Agencia Española de Protección de Datos , or AEPD) either in their own name or anonymously, reporting violations of their own or third parties’ privacy rights. The AEPD may impose the administrative fines laid down by the EU General Data Protection Regulation (Regulation (EU) 2016/679). 6.2 Telemarketing Telephone spam and unsolicited commercial commu - nication by telephone, fax or other equivalent means of communication, for commercial purposes are pro - hibited, unless there is prior consent from the user to receive this type of commercial communication or unless the communication can be supported by
262 CHAMBERS.COM
Powered by FlippingBook