In recent years, the production and dissemination of audiovisual content through social networks and platforms has been growing. This offer has become a priority for users when looking for entertainment and general information.
This digital and social media world has given rise to a new generation of professionals: influencers. The European Union, aware of this reality, approved Directive (EU) 2018/1808, of the European Parliament and of the Council, of November 14, 2018 (six years ago) amending Directive 2010/13/EU on the coordination of certain legal, regulatory and administrative provisions of the Member States relating to the provision of audiovisual communication services.
Spain incorporated this Directive into its legal system with the approval of Law 13/2022, of July 7, General Audiovisual Communication (LGCA). The LGCA defines the influencer as the user who uses a video sharing service through a platform and who, simultaneously: 1) Generates significant income; 2) He decides what and how to generate his content, because he is the editorial person in charge of the audiovisual content made available to the public on his service; 3) It has a clear impact on the public; 4) Intended to inform, entertain or educate; 5) Its main objective of the service is the distribution of audiovisual content; 6) Offers its service through electronic communications networks; and 7) You must be established in Spain. But there is a waiting time of two years to find out what the necessary requirements are to be considered an influencer or “user of special relevance” on video sharing platforms, thanks to the approval of Royal Decree 444/2024 of April 30.
This Royal Decree was born because content creators play an increasingly important role in society. For this reason, and in coherence with European standards, Spain adopts regulations to protect consumers and especially minors. Its objective is to adopt an updated legal framework in line with the evolution of the audiovisual market. A balance must be achieved between access to content, user protection and competition between different providers, including, under the same rules of the game, all actors competing for the same audience.
This Royal Decree must be read together with the LGCA since its purpose is to specify the requirements provided therein regarding the definition of the users (natural or legal persons) of the video exchange services through the platform (known usually as influencers). Now, not all influencers are subject to this regulation.
This Royal Decree has quantified and clarified two requirements to be considered an influencer: income and audience. Within the scope of application of what is classified as a user of special relevance, there are both natural and legal persons who meet the following criteria: 1) Annual income greater than 300,000 euros derived from their entire activity; 2) Significant audience of more than one million followers on a single video platform or two million in total on all their platforms; 3) Activity of at least 24 videos published per year.
Significant income?
The art. 3 of Royal Decree 444/2024, provides that significant income is those gross income accrued in the previous calendar year that is equal to or greater than 300,000 euros, and that comes exclusively from the activity of users in all exchange services. of videos across platforms. In this sense, to determine whether an influencer meets the significant income requirements, the following are taken into account: A) Monetary and in-kind remuneration for commercial communications in audiovisual content; B) Payments from platforms for the influencer’s activity; C) The hearing fees and payments; D) The financial benefits of administrations and public entities related to the influencer’s activity; and E) Other income related to activity on video platforms.
Significant audience?
In accordance with art. 4 of Royal Decree 444/2024, it is considered that a service is intended for a significant part of the general public and can have a clear impact on it when the following requirements are met cumulatively: a) That the service reaches, in some time of the previous calendar year, a number of followers equal to or greater than 1,000,000 on a single service; or a number of followers equal to or greater than 2,000,000, in aggregate considering all video sharing services in which the user has an account. b) That the user has published or shared a number of videos equal to or greater than 24 in the previous calendar year. Regarding the criterion of the number of videos, the question arises as to whether non-audiovisual content such as photographs should not be counted. According to art. 121 of the LGCA grants photographs the consideration of commercial audiovisual communications.
State Registry of Audiovisual Providers?
All influencers who meet the three criteria set out and reside in Spain or live abroad and are Spanish, must register, within two months, in the State Registry of Audiovisual Providers. In addition, they must face a series of obligations that respond to the general principles of audiovisual communication: a) Identification of advertising content; b) The prohibition of tobacco advertising. It refers to tobacco and its derivatives and the like. Specifically, you cannot advertise electronic cigarettes, cigars, smoking herbs or the companies that produce them, as well as medications. c) Restrictions on alcohol advertising.
This restriction affects the promotion schedule of alcoholic beverages based on their alcohol level. Thus, any product that exceeds 20 degrees is only promoted between 01:00 and 05:00 in the morning; On the contrary, those who do not pass it are promoted between 8:30 p.m. and 5:00 a.m. d) Advertising restrictions on games of chance and betting refer to the broadcast of programs aimed at a minor audience. e) The protection of minors, guaranteeing that they are not exposed to negative content.
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