On 7 December 2023, the Ministry of Economy and Digital Transformation in Spain released a Draft Royal Decree (the Draft) outlining the requirements for classifying a user as being of “special relevance.” These users – commonly known as vloggers, influencers or content creators – have, for the first time, been recognized as audiovisual communication service providers for the purposes of compliance with certain obligations regulated in Law 13/2022 of 7 July on Audiovisual Communication (LGCA).

The primary goal of the Draft is to strike a balance between:

• ensuring access to content; 
• safeguarding users, with a particular focus on minors; and 
• fostering competition among various providers in the market. 

To address these objectives, the Spanish government feels it’s crucial to incorporate these new players into the regulation, treating them as audiovisual communication service providers. This recognition is prompted by their increasing significance in the audiovisual market, both in terms of audience, consumption and advertising investment, especially affecting younger audiences.

Requirements developed by the General Law on Audiovisual Communication

Last year, in July 2022, the LGCA advanced the requirements for considering a user as being of special relevance in Article 94. The fundamental requirement is that these special users (we’ll call them “influencers” for the sake of clarity) engage in video exchange services through a platform.^[1] Additionally and simultaneously, the following conditions must be met:

• The service provided by the influencer must involve an economic activity from which they derive significant income.
• The influencer must assume the editorial responsibility for the audiovisual content.
• The service provided must be directed to a significant part of the general public with the potential to have a (significant) impact on it.
• The function of the service can be to inform, entertain, or educate, with the primary objective being the distribution of audiovisual content.
• The communication networks through which the service is offered are established in Spain.

The requirements of "sufficient income" and "general public" (subsections [a] and [b] of Article 94.2 of LGCA respectively) were not detailed in the article. Their application was suspended, pending the approval of a regulation that would need to specify their meaning and scope, as stipulated in the ninth supplementary provision of the LGCA. This is why the publication of this draft Royal Decree is so important. It’s not just that it’s given more clarity. With its approved specifications, obligations for users of special relevance, (aka influencers), will come into effect.

Regulatory developed by the draft Royal Decree

A key feature introduced by the draft Royal Decree, consisting of four articles, is the specifications to be considered an influencer. The following traits should be considered:

Significant income

The Draft establishes that “significant income” is the gross earnings generated in the previous fiscal year, equal to or more than EUR500,000, derived from influencers' participation in video-sharing platform services. Additionally, a non-exhaustive list of income sources is included to determine the this amount:

• Revenues obtained from marketing, selling, or organising audiovisual commercial communications accompanying or inserted into audiovisual content.
• Payments made by the platform service providers to the influencers due to their activity.
• Revenues earned by influencers from fees and payments made by their audience.
• Revenue from financial aid granted by governments and public entities related to the influencers' activity.
• Other income derived from the users' activity on video-sharing platform services.

Any income not associated with users' activity in video-sharing platform services is expressly excluded from the calculation.

Significant audience

The Draft establishes the criteria for considering that a service is aimed at a significant portion of the general public and can have a clear impact on that audience. To meet these requirements, the service must:

• have an average of 2 million (or more) followers during the previous year on a video-sharing platform service where the influencer is active; and
• post a minimum of 24 videos in the past year, regardless of their length.

These two concepts (significant income and significant audience) play a decisive role in evaluating the importance and reach of a service offered by an influencer on video-sharing platforms. The thresholds in Articles 3 and 4 of the Draft are determined based on evidence from influencer self-regulation materials, media agency reports, and a comparison with legal frameworks in other EU Member States, as outlined in the Regulatory Impact Analysis Memorandum attached to the Draft.

Exceptions to the legal concept of a “user of special relevance” (=influencer)

The Article 94.3 of the LGCA clearly identifies specific exceptions that definitively do not fall within the category of “users of special relevance.” These exceptions are applicable to the following market players when they act within the scope of their “natural” functions:

• Schools or research institutions
• Museums, theatres, or any cultural organisation
• Government bodies or political parties
• Businesses and self-employed individuals promoting their goods or services
• Nonprofit associations and organisations

Obligations

After confirming that an influencer meets the specified requirements and is not exempt, they must comply with the following obligations indicated in the Draft (exactly as if they were audiovisual communication service providers). These obligations are:

• To register with the Spanish National Registry of Audiovisual Communication Service Providers.
• To ensure their audiovisual content does not promote violence, hatred, discrimination, terrorism, child pornography, or incite any criminal activities.
• To protect minors from exposure to content that may adversely affect their physical, mental, or moral development.
• To adhere to specific quality standards for broadcasting audiovisual commercial communications.

Conclusions

Article 94 of the Law of General Audiovisual Communication (LGCA) is not yet in force, pending the final approval of the Draft Royal Decree that regulates the requirements for being considered a user of special relevance, in accordance with the provisions of the Law 13/2022, dated 7 July on Audiovisual Communication. The final version of the Draft may be close to the one that has been just released. 

We will provide regular updates on any developments or potential changes to the regulation. A period for comments from the market players and the public is open until 20 December 2023. The Spanish government may take into account some of these comments and amend the Draft accordingly.

Read the Draft Royal Decree here.

^[1] The term "video-sharing platform service" is defined as a service whose main purpose, either in its entirety or in one of its dissociable parts, or whose essential functionality, is to provide, to the general public through electronic communication networks, programs, user-generated videos, or both. The platform provider is not editorially responsible for this content. The service aims to inform, entertain, or educate, as well as to broadcast commercial communications. The organisation of the service is determined by the provider, including, among other means, through automatic algorithms, particularly through presentation, labelling, and sequencing (article 2.13 LGCA)