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As of June 16, the Advertising Standards Authority (“ASA”), the United Kingdom’s advertising self-regulatory body similar to Autocontrol in Spain, has started publishing on its website a list of influencers in breach of its advertising code. This unusual measure is part of an announced crackdown on surreptitious advertising by influencers and the brands they advertise.
It does not signify a change in strategy. Back in March 2021, the ASA published a report analyzing the level of compliance in terms of properly indicating and labeling advertising on social media, after examining over 24,000 stories, fleets and posts on social media of 122 well-known influencers in the UK. The report concluded that the vast majority of influencers examined did not include any express indication that their advertising activity was paid or did not make it sufficiently clear when they were being paid to promote a particular product or service.
In that report, the ASA stated that it had contacted all the influencers monitored, as well as all the brands associated with them, to ask them to ensure compliance with the obligation to disclose advertising in social media posts.
The ASA warned in its report that, if the monitored influencers breached its social media advertising code again, their name would be included on a public non-compliant list on its website, and it even warned that it could publish targeted paid advertisements on the platforms naming offenders.
Three months after the report was published, the ASA followed through with its warnings, and a list containing the names of non-compliant influencers, their user accounts on social media and the date they were included on the list is available to the public on its website from June 16, 2021.
Furthermore, the web page listing the non-compliant influencers announces that those accounts will be subject to enhanced monitoring and warns influencers that the self-regulatory body may refer them to the British government authorities to examine possible administrative and even criminal liability.
It should be noted that, as a non-governmental self-regulatory body, the ASA has no administrative sanctioning or disciplinary authority to take legal action against the breach of its advertising codes. Therefore, the ASA has alternative mechanisms to ensure compliance with its advertising codes, which usually involve bad publicity or causing reputational damage to non-compliant advertisers, as it has done by creating the non-compliant page for influencers in breach of its advertising code.
In Spain, the “Code of Conduct on Using Influencers in Advertising” (the Code of Conduct), promoted by the Association for Self-Regulation of Commercial Communications (“Autocontrol”) and the Spanish Advertisers Association (“AEA”), came into effect in January.
Like the UK’s advertising code, the Code of Conduct promoted by Autocontrol and the AEA is mainly aimed at battling surreptitious advertising and ensuring compliance with the principle of authenticity or identification of advertising, under which the commercial or promotional nature of a post published on social media by influencers must be disclosed to the public.
The Code of Conduct is only binding on the member companies and entities that have joined the entities behind it, as well as any other companies in the industry (advertisers, agencies, representatives, media) and influencers who voluntarily adhere to it. The adhered entities, companies and influencers must observe and immediately comply with Autocontrol Advertising Jury’s rulings on complaints filed regarding possible breaches of the Code of Conduct.
Like the ASA, Autocontrol has no administrative sanctioning or disciplinary authority to take legal action against breaches of its advertising codes. However, in contrast to the ASA’s controversial measures, Autocontrol has so far opted for educational mechanisms to promote compliance with its Code of Conduct. As part of this, it has issued several non-binding opinions since the Code of Conduct came into effect analyzing several breaches by non-member influencers and entities, which it urges to cease and refrain from surreptitious advertising in the future.
At this point, one could ask: could measures such as ASA’s in the UK publishing a list of influencers in breach of a voluntary advertising code be implemented in Spain?
There are questions regarding the legality of this sort of measure in Spain, mainly due to personal data protection concerns.
Creating and publishing a list containing personal data such as the first names and surnames of influencers and their user accounts involves personal data processing under article 4 of the General Data Protection Regulation (GDPR).
In fact, under article 6 of the GDPR (regulating the lawful basis for processing personal data) and assuming that influencers have not given their consent to be included in that list, data processing could only be legal if it were necessary to prepare the list to comply with a public service mission or public authorities remit, or if it pursued a legitimate interest.
In this case, given that bodies such as Autocontrol are non-profit associations established as independent and private bodies with no functional link to the public authorities, processing data in a hypothetical list of influencers in breach of its Code of Conduct under the pretext of a public service mission could hardly be considered lawful. It would even have less chance of meeting the public authorities’ requirement because self-regulatory bodies are characterized by the private nature of their activity.
In addition, attempting to justify the lawfulness of processing influencers’ personal data based on a legitimate interest—ending surreptitious advertising—could be questionable with regard to the proportionality of the measure and the potential harm it could cause the influencers concerned, and it could lead to complaints with the Spanish Data Protection Agency.
To draw conclusions, we will have to monitor closely how this controversial measure in the UK and the recently published Code of Conduct in Spain develop, along with any legislative developments to establish a firm regulatory framework in the fight against surreptitious advertising.
Authors: Pedro Miguel Santos and Albert Agustinoy
This post is also available in: Español