The term "influencer", which comes from English, refers to a person with the ability to influence others, especially through the RRSS.
Your opinion on certain products and/or services influences the purchasing decisions of your followers, which is why brands from different sectors pay you to advertise them on their profiles on different social networks.
It is not necessary for the influencer to be a famous person in the traditional media, but they must have some credibility in a specific market niche.
Through which contract does the influencer work?
The contracts that influencers sign with brands are service provision contracts.
In these contracts, the advertiser signs the influencer to promote his brand, for his recognition in a certain sector, in exchange for a reward that he himself receives, and which can be financial or in kind.
This type of contract is the most appropriate, since it includes the benefits that we have mentioned, and the relationship between the two parties is normalized with all kinds of details. That is to say, it is reflected exactly how the advertising has to be done and, in this way, in the event that in the future there is a conflict by any of the parties, its compliance will be demanded judicially.
Necessary clauses of the contract
So that there is no setback in the development of the contractual relationship, some minimum clauses must be included, which we will explain below, common to this type of contract, with the possibility of adding others if it is considered necessary.
First of all, the object of the contract must be defined. This is essential, because the type of content that the influencer has to publish will be reflected here, on which channel the advertising has to be carried out, when these publications will be carried out and all other details regarding said advertising.
Secondly, the remuneration that the influencer will obtain for doing the collaboration must be reflected. The remuneration can be economic or in kind, but it can have many specialties, therefore, it is essential that it is very well detailed how this remuneration is going to be carried out, especially when it is in kind.
Another detail that can be incorporated is the exclusivity clause, in which it is determined whether the influencer can advertise on the competition or not, in addition to the time that this exclusivity will be in force.
Likewise, it should be noted, the importance of intellectual and industrial property rights in this field, determine who will own the content produced by the influencer and how it can be used. Typically, content produced for collaboration belongs to its creator, so this clause describes where the advertiser can use the content and for how long.
Normalization of influencers in Spain
In relation to the rules and laws that influencers must follow, the General Audiovisual Communication Law (LGCA) is applied, which was approved on July 7, 2022, better known as the influencers law. This law has the objective of regulating the possible excess of publicity and generates new obligations regarding its economic activity.
In addition, on January 1, 2021, the influencers' Advertising Code of Conduct entered into force, which was drawn up by the Spanish Association of Advertisers (AEA) and the Association for the Self-regulation of the Commercial Community (Autocontrol), with the purpose of to have a protocol of good practices and responsible advertising.
This code establishes a set of rules to follow, which are mandatory for adhering members, as well as for other companies in the sector, such as advertisers, advertising agencies, representatives, advertising media or for those influencers who voluntarily sign up. adhere.
Therefore, for this last group, these are “soft law” rules, that is, rules that are not strictly binding or obligatory by nature, nor are they completely devoid of legal meaning.
In other words, they are codes or statements that establish standards of conduct but are not mandatory.
There is also the Commercial Code, Law 34/2002 of July 11 on information society services and electronic commerce, or Law 34/1988 of November 11. Which are regulations of a general nature applicable in this area.