The rapid evolution of the audiovisual world, which is accessed by millions of people, and the appearance of the so-called influencers and bloggers, have made it necessary to include them in the legal framework of the agents involved in the audiovisual market. This was initiated by the European Directive 2018/1808 on the provision of audiovisual communication services transposed in Spain with the General Law 13/2022 on Audiovisual Communication. The legislator chooses to regulate users of special relevance established in Spain -avoiding using the English word "influencer"-:.
Royal Decree 444/2024 also considers visual communication service providers to be "users of special relevance", understood as natural or legal persons, who are users of services on video-sharing networks and platforms: (a) that generate significant income, which translates into: gross revenue, during a calendar year, equal to or greater than €300,000, in cash or in kind, (b) with a significant audience in a calendar year (1 million followers on a platform, or 2 million followers on all platforms on which it is present) and (c) at least 24 videos regardless of their duration).
The aim is to identify and regulate those influential users, who must:
• Identify advertising content and comply with advertising regulations.
• Tag content by age.
• Respect the dignity, pluralism, equality, rights of people with disabilities, the intellectual property rights of third parties and the protection of minors.
• Do not advertise tobacco, gambling or betting in spaces aimed at minors, medicines or alcoholic beverages in certain cases.
• Register in the State Registry created for this purpose, and communicate their start of activity.
Likewise, as is logical, they are obliged to declare their income and remuneration - in money or in kind - for collaborations, advertising, sponsorships, etc. on video platforms. On this point we can distinguish:
• Users who operate personally and directly: they must register as self-employed and are subject to the social security contribution obligations under this regime and the corresponding tax obligations (IRPF).
• Users who operate through a company, it must be duly registered and comply with the accounting and tax obligations for Corporate Income Tax, in addition to those of social security contributions (e.g. self-employed).
Infringements for non-compliance with obligations imply penalties, including pecuniary fines of up to €1,500,000.
In an activity of potentially exponential growth such as this, it is essential to have expert legal advice to determine the framework of the activities of each influencer in the new regulation, especially if they are understood to be established in Spain and to design the most appropriate legal formula taking advantage of the legal and tax opportunities offered by the new legislative framework.
