Table of contents
We analyze the changes affecting influencers with the modification of the requirements to be considered users of special relevance, as we already advanced in the article of the Advertising Day, the so-called Influencers Law.
The approval by the Council of Ministers this past April 30 of Royal Decree 444/2024, within the framework of the General Law on Audiovisual Communication (LGCA), has direct consequences on the obligations of those considered users of special relevance who use video sharing services through different platforms, both in the creation of content and in advertising actions. This Royal Decree came into force on May 2, 2024.
Failure to comply with this Influencers Law may result in penalties ranging from 10,000 euros to 1.5 million euros, depending on the seriousness of the case.
What are the minimum requirements to be considered a user of special relevance?
The requirements contemplated in the approved regulations for an influencer to be considered a user of special relevance are:
- Significant income: gross income, accrued in the previous year, equal to or greater than 300,000 €, derived from the activity of users in video sharing services through platforms.
- Significant audience: it is considered that the service for which a user is responsible is intended for a significant part of the general public and may have a clear impact on it when:
- i) Such service has an average number of followers equal to or greater than 1 million followers in a social network or 2 million followers among several platforms of the video sharing services on which the user carries out its activity and
- ii) The service contains at least 24 videos in the previous year, regardless of their duration.
This regulation is aimed at promoting the protection of the recipients of audiovisual content, especially minors, establishing a series of parameters to regulate good advertising practices by the so-called users of special relevance.
The Explanatory Memorandum of the General Law on Audiovisual Communication, which is based on the Audiovisual Communication Services Directive, refers to these agents as users of special relevance who are (we quote): “grouped under the concept of ‘vloggers’, ‘influencers’ or ‘opinion leaders’, who are relevant in the audiovisual market from the point of view of advertising investment and consumption”.
Why are these requirements not considered adequate?
Some entities of the sector, such as the Asociación de Usuarios de la Comunicación (AUC) or the Asociación de Televisiones Comerciales (UTECA) from the beginning showed their radical rejection to such high parameters that affected the scope of application of the Law. For this reason, they issued a proposal for the parameters of the new regulation, establishing lower criteria:
- Significant annual revenues of 100,000 €
- Significant audience of 100,000 followers or more.
The final specification of these values and requirements included in the General Law on Audiovisual Communication has not been so restrictive. In order to establish them, a series of economic and social impact parameters have been followed, as detailed in the Report on the analysis of the regulatory impact of the Draft Royal Decree. In practice, this means that the restrictions contained in the Influencers Law (€300,000 turnover and/or 1 million followers) affect only a few more than three hundred content creators.
In Spain there are approximately 12,000 content creators or influencers with more than 100,000 followers. Therefore, it is considered that the fact that the subjective scope of application is so reduced implies a considerable moderation of the positive effects of this regulation since the aims and purposes of this regulation -mainly concerning the protection of minors and consumers, as well as the promotion of ethical practices- will foreseeably be undervalued by the existence of an innumerable group of influencers who will not be restricted in their actions of content creation.
In practice, the creation of content by the most relevant influencers in Spain will be restricted by public administrations and thus will be put on a par with, for example, television channels. As mentioned above, for an influencer to qualify as a user of special relevance, one of the requirements defined above must be met, i.e. significant income or significant audience.
In summary, the approved regulation raises some concerns about its effectiveness, due to the establishment of extremely reduced parameters that restrict the application of these measures and limit their subjective scope. Consequently, to comply with the purposes of the regulatory change, as well as to protect the interests at stake of the most vulnerable subjects, a relaxation of the income and audience parameters is required to accommodate, within the consideration of users of special relevance, a majority group of content creators and influencers.
Taxation applies to content creators or so-called vloggers or influencers.
Although the aforementioned LGCA does not regulate the taxation applicable to this type of audiovisual content creators or users of special relevance, the scope of application of the same is limited to those who are established in Spain, i.e., to those vloggers or influencers who reside here.
It is worth remembering that these content creators, who are tax residents in Spain, must pay taxes in Spain for any type of consideration they receive in the exercise of their activity, so that, for tax purposes, there are no specific rules that apply to these operators and that are different from any self-employed person who carries out an economic activity.
Thus, any content creator resident for tax purposes in Spain who receives any type of consideration, whether monetary (cash) or in kind (travel, products, vehicles) for collaborating in the promotion of any type of product, will be included as income from economic activities in their personal income tax.
In this sense, there is no quantitative limit for which influencers should not be taxed for the receipt of such considerations, but rather, from the moment they receive any consideration, in cash or in kind, for the promotion of a product, however minimal it may be, they would be carrying out an economic activity that would be subject to taxation in their Personal Income Tax.
As for the valuation when including such considerations in the income tax return, it is clear when it comes to monetary considerations, and must include the money received, but how are the products, trips, and cars that content creators may receive as consideration valued?
Contrary to what may be thought, such considerations are not gifts, but “payments in kind” for the provision of their advertising services and are subject to the influencers' income tax and VAT, the amount of which, when included in the income tax return or issued an invoice, will be the price that any customer would have had to pay to enjoy them under identical conditions. As an example, if an influencer collaborates with a hotel, promoting its brand, and in exchange receives a hotel night with breakfast valued at 500 euros, the imputable income for tax purposes to be taken into account by the content creator will amount to 500 euros.
Notwithstanding the foregoing, there are special rules concerning the valuation of the consideration received by influencers in kind depending on the nature of the good they receive.
Thus, if a vehicle brand lends them one of its cars to use for a period of time, for advertising said brand, the valuation of said vehicle will amount to 20% per year (i) of its market value or, in the event that the vehicle is owned by the payer, (ii) of its acquisition cost.
In short, the taxation applicable to vloggers, influencers, or any content creator who performs an economic activity, will be exactly the same as that which should be applied to any self-employed person who performs an economic activity, regardless of the volume of income received as consideration for the performance of these collaborations for the promotion of services, products, etc., regardless of whether or not they are qualified as users of special relevance for the LGCA.
At CECA MAGÁN Abogados we have a team of experts in specific legal services for influencers and users of special relevance and you can ask us any questions you may have by contacting us here.
Mónica Muñoz, Pablo Pedraza and José Montolío
Lawyers in the areas
Add new comment