Spain: Influencer Recruitment: Legal Keys to Secure Collaboration

Influencer marketing has established itself as one of the most powerful tools for brands. Its reach and ability to connect with specific audiences have made it a strategic channel. However, this growth has also brought with it new legal requirements that companies cannot ignore.

Inadequate management can lead to infringements in terms of advertising, image rights, intellectual property or data protection. Therefore, integrating legal review from the planning phase is not only a preventive measure, but an essential part of reputational management.

Social media advertising: transparency as an obligation

Spanish regulations require that any promotional content be identified in a clear and understandable way. Failure to warn constitutes covert advertising, one of the most common infractions in this area.
Brands and influencers share the responsibility of communicating the existence of a business relationship through visible labels and unambiguous formulas.

In addition, messages that may mislead about a product’s features or benefits may be considered misleading advertising. In regulated sectors – such as health, nutrition or gambling – the level of control must be even higher, and prior legal review becomes essential.

To avoid risks, it is recommended that briefings include precise instructions on how to identify advertising and on any industry-specific legal requirements.

Intellectual property: clear rights to avoid conflicts

In the creation of digital content, the use of music, images or fragments without authorization can compromise the brand, even if the infringement is committed by the influencer himself. Platforms or rights holders can demand the immediate removal of posts, affecting the visibility of the campaign.

Therefore, the contract must precisely define the transfer of rights to the content generated: duration, territories, dissemination channels and purposes. This prevents future conflicts and ensures that the company can reuse the material without unforeseen limitations.

In the same way, the influencer’s use of the brand must be strictly in accordance with what is authorized.

Right to image and personal data: special attention to minors and third parties

Image is a fundamental right and a personal data. Any use must comply with Organic Law 1/1982 and the GDPR.
When minors or identifiable third parties appear in the content, express and verifiable consent is required. In the case of “kidfluencers”, the risk is greater, and specific protocols and prior reviews of the materials may be necessary.

It is also important to consider the reuse of the influencer’s image: any publication or republication must respect the agreed limits (duration, means, territory and purpose). The contract must even provide for mechanisms for removing content in the event of changes in the collaboration.

If the influencer collects follower data – for example, in prize draws – a contract in accordance with Article 28 of the GDPR is necessary to delimit responsibilities and ensure the security of the processing.

Contracting: the tool that provides legal certainty

The contract is the axis of all collaboration. It must detail the purpose of the campaign, transparency obligations, image and IP rights, conditions of use of the brand, exclusivity, duration and consequences in the event of non-compliance.

It is advisable to incorporate reputation clauses, mechanisms for prior review of content and confidentiality obligations. Before signing, it can be useful to conduct a reputational due diligence of the creator to detect risks associated with their track record or the authenticity of their audience.

AI, deepfakes and virtual influencers: new legal scenarios

Generating images or videos with artificial intelligence opens up creative opportunities, but it also requires transparency. Failure to notice that content has been artificially generated may mislead or infringe copyright or image rights.

It is essential to check the ownership of the rights to any material created with AI and review the terms of the platforms used.
In the case of virtual influencers or digital avatars, the design, voice and image rights and the responsibilities arising from their exploitation must be contractually defined.

By Marimón Abogados, Spain, a Transatlantic Law International Affiliated Firm.

For further information or for any assistance please contact spain@transatlanticlaw.com

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