On May 1^st, 2024, the Ministry of Economy and Digital Transformation in Spain has officially published the new Spanish Royal Decree 444/2024 outlining the requirements for classifying a user as a High Profile Influencer (the "Royal Decree"). These High Profile Influencers (“HIPIs”), commonly known as vloggers, influencers, or content creators, are recognized for the first time 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 Royal Decree is to strike a balance among (i) ensuring access to content; (ii) safeguarding users, with a particular focus on minors; and (iii) fostering competition among various providers in this market. To address these objectives, the Spanish Government feels it is crucial to incorporate these new market players into the regulation, treating them as audio-visual communication service providers. This recognition is prompted by their increasing significance in the audio-visual market, both in terms of audience, consumption and advertising investment, especially impacting younger audiences.

1. Requirements developed by the General Law on Audiovisual Communication

In July 2022, the LGCA advanced the requirements for considering a user as being of special relevance in its Article 94. The fundamental requirement is that these special users (that we denominate High Profile Influencers or HIPIs for the sake of clarity) engage in video exchange services through a platform^[1]. Additionally and simultaneously, the following conditions must be met:

a) The service provided by the HIPI must involve an economic activity from which they derive significant revenues.

b) The HIPI must assume the editorial responsibility for the audiovisual contents.

c) The service provided must have a significant audience, i.e. to be directed to a significant part of the general public with the potential to have a (significant) impact on it.

d) The function of the service can be to inform, entertain, or educate, with the primary objective being the distribution of audiovisual contents.

e) The communication networks through which the service is offered are established in Spain.

The aforementioned requirements of “significant revenues” and “significant audience” (subsections [a] and [b] of Article 94.2 of LGCA respectively), were not detailed in the mentioned article. Therefore, 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 new Royal Decree is so important. It is not just that enhanced clarity is provided. With its approved specifications, obligations for users of special relevance, (aka HIPIs), has come into effect.

2. Regulatory items developed by the Royal Decree

A key feature introduced by this Royal Decree, consisting of four articles and a supplementary provision, is the definition of HIPI. The following traits must be considered:

i. Significant income

The Royal Decree eventually establishes that “significant revenue” will be those gross earnings generated in the previous calendar year, that are equal to or exceed 300 000 euros, derived from influencers' participation in video-sharing platform services. Additionally, a non-exhaustive list of revenue sources is included to determine the mentioned amount:

a) Revenues obtained from the marketing, sale, or organization of audiovisual commercial communications accompanying or inserted into audiovisual content.

b) Payments made by the platform service providers to the HIPI due to their activity

c) Revenues earned by HIPIs from fees and payments made by their audience.

d) Revenues from financial aid granted by governments and public entities related to the HIPIs' activity.

e) Other income directly or indirectly derived from the activity in video-sharing platform services.

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

ii. Significant audience

The new Royal Decree 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 fulfil the following conditions:

a) Reaching, at any time during the preceding calendar year, a minimum of 1 000 000 followers in one single video exchange platform or 2 000 000 followers in all the platforms used by a given HIPI.

b) Posting a minimum of 24 videos in the preceding calendar year, regardless of their length.

These two concepts (significant revenue and significant audience) play a decisive role in evaluating the importance and reach of a service offered by a HIPI on video-sharing platforms. The thresholds in Articles 3 and 4 of the Royal Decree are determined based on evidence from influencers 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 produced during the preparatory works of the Royal Decree.

3. Exceptions to the legal concept of a “user of special relevance” (=HIPI)

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

a) Schools or research institutions.

b) Museums, theatres, or any cultural organization.

c) Government bodies or political parties.

d) Businesses and self-employed individuals promoting their goods or services.

e) Non-profit associations and organizations.

4. Obligations

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

a) To get registered with the Spanish National Registry of Audiovisual Communication Service Providers.

b) To ensure that their audiovisual contents does not promote violence, hatred, discrimination, terrorism, child pornography, or incite any criminal activities.

c) To protect minors from exposure to content that may adversely affect their physical, mental, or moral development.

d) To adhere to specific quality standards for broadcasting audiovisual commercial communications.

5. Conclusions

Article 94 of the Law of General Audiovisual Communication (LGCA) has come into full force as of May 2^nd, 2024, following the final approval of the Royal Decree that regulates the requirements for being considered a user of special relevance, in accordance with the provisions of Spanish Law 13/2022 on Audiovisual Communication. 

The full text of the new Royal Decree 444/2024 can be found here: https://www.boe.es/boe/dias/2024/05/01/pdfs/BOE-A-2024-8716.pdf 

_{[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 these contents. The service aims to inform, entertain, or educate, as well as to broadcast commercial communications. The organization 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)}