Advertising and Marketing 2024 Comparisons

Advertising practices in Spain are primarily regulated by:

• the General Advertising Act (Law 34/1988);
• the Unfair Competition Act (Law 3/1991);
• the General Audio-Visual Communication Act (Law 13/2022); and
• the General Law for the Defense of Consumers and Users (Royal Decree 1/2007).

However, special regulations covering specific requirements for certain products (ie, alcohol, tobacco, food, etc) must be taken into account.

The regulatory authorities responsible in Spain for enforcing the laws and regulations governing advertising practices are:

• Autocontrol: Autocontrol is the independent advertising self-regulatory organisation (SRO) in Spain. The Autocontrol Jury is the independent out-of-court body in charge of adjudicating on complaints submitted on advertising issues. The Jury’s decisions tend to be conservative and are only binding on members of Autocontrol and those non-members who expressly accept the competence of the Jury. Autocontrol does not impose fines. Where the respondent is not a member of Autocontrol and does not expressly agree to arbitration, the decision shall not be binding. In such cases, Autocontrol will issue an opinion as to whether or not the advertisement in question infringes its codes and the applicable regulations. Civil courts often adhere to such decisions.
• Courts: The courts may, in addition to declaring the activity to be unfair, order it to cease, prohibit its repetition, and remove the effects produced by the unfair conduct. They may also order the rectification of misleading, incorrect or false information, as well as compensation for damages caused by the unfair conduct, if the agent has acted with malice or negligence. The court may also, at the defendant’s expense, order the publication of all or part of the judgment or a declaration of rectification.
• Public administration: The ministries and departments of the autonomous communities are empowered to judge commercial acts and conduct classified as infringements under the regime of the Consumer Protection Act. Penalties for these infringements range from fines of EUR150 to EUR1 million. In addition to the legal sanctions, the infringing advertiser may also be obliged to restore the complaining party to their pre-infringement state, which may include providing compensation for damages. Advertising relating to goods or services with specific regulation (medicines, food, gambling, finance, etc) is supervised by the competent authorities in the respective fields, which means that special administrations can control and take decisions on the contents and continuation of certain advertising activities, including imposing sanctions on advertisers in some cases.
• The Spanish National Markets and Competition Commission (CNMC) ensures that audiovisual content complies with legislation on protection of minors, advertising, and accessibility. It also resolves sanctioning cases involving violations of the regulations. The CNMC can impose fines of up to EUR1,500,000, depending on the seriousness of the infringement, the platform used to disseminate the content, and the revenue generated by the infringer.

The advertiser is ultimately responsible for deceptive advertising, and they are the ones who will face legal action if their advertising is deemed deceptive. In some cases, audiovisual media service providers may also be held liable for deceptive advertising.

According to the Spanish General Advertising Act, advertising is considered to be any form of communication made by a natural or legal person, public or private, in the exercise of a trade, business, artisanal or professional activity, with the aim of directly or indirectly promoting the contracting of goods, services, rights and obligations.

Generally, pre-approvals of advertising are not required.

However, an exception is made for the advertising of the following products and services:

• Medicinal products: Permission is granted by the health authorities of the autonomous region where the advertising should be shown.
• Gambling: The game operator should obtain a general authorisation from the National Gaming Commission empowering them to develop advertising activities, sponsorship or promotion of gambling.
• Tobacco: Tobacco operators are obliged to notify the Commissioner for the Tobacco Market (CMT) in advance of any promotional campaigns for tobacco products that they intend to hold in tobacco shops, subject to the limitations and prohibitions established in the applicable regulations.
• Banking and financial services, crypto-currencies: Authorisation will be granted by the banking or finance authorities (CNMV or Bank of Spain).

According to Intellectual Property Law (Royal Legislative Decree 1/1996), the use of any copyrighted work requires the prior authorisation of the copyright holder.

In accordance with the Civil Protection of the Right to Honor, Personal and Family Privacy and Image Act (Law 1/1982), it is illegal to use the name, voice, or likeness of a person for advertising or commercial purposes (or purposes of a similar nature) without the consent of the individual.

Therefore, the use of intellectual property or a person’s name, image, voice or likeness in advertising always requires authorisation.

Autocontrol manages the Spanish system of self-regulation of commercial communication on the basis of three main instruments:

• Codes of conduct: The Code of Advertising Practice of Autocontrol is based on the Code of Advertising and Marketing Communication Practice of the International Chamber of Commerce (ICC Code), and the Sectoral Codes of Conduct whose application has been entrusted to Autocontrol.
• Advertising Jury: This is the extrajudicial dispute resolution body that is responsible for resolving advertising complaints.
• Legal Counsel: This service is provided by experts in advertising law, privacy and data protection and IT, who advise companies on the fulfilment of their legal obligations in these areas.

Autocontrol activities include the handling of complaints about commercial communications submitted by consumers, consumer associations, businesses and public offices.

Autocontrol also offers advice to companies through tools such as:

• Copy Advice®: advice on the legal and ethical compliance of non-broadcast advertising campaigns before their broadcast;
• Cookie Advice®: technical and legal advice on the use of cookies;
• Data Advice®: technical and legal advice on data protection and digital regulation;
• Web Advice®: advice on compliance with advertising regulations on websites; and
• Copy Advice®: briefing influencers (adapting the Copy Advice® service to evaluate the briefing provided by advertisers or agencies to their influencers).

Consumers and consumer associations have various options for lodging complaints against advertising practices.

One of the options open to them is to complain to the consumer authorities for violations of the Consumer and User Regulations. Most regional and municipal governments have services helping consumers to file complaints against companies operating in Spanish territories and/or start arbitration proceedings regarding disputes arising from commercial relationships.

In addition, any person or entity whose economic interests are directly affected or threatened by illegal advertising in the market is entitled to take civil action under the Unfair Competition Act (civil proceeding). Consumers may exercise legal actions seeking:

• a declaration of disloyalty;
• cessation of unfair conduct;
• prohibition of the implementation or future repetition of conduct;
• removal of its effects;
• the rectification of misleading, incorrect or false information; and
• compensation for damages caused by the unfair conduct, if the agent has acted with malice or fault.

Finally, they can also lodge a complaint with Autocontrol. The Autocontrol complaint system is free for consumers and consumer associations.

In recent times, there has been growing concern about the use of environmental claims, as their uncontrolled use has increased the occurrence of misleading advertising. Thus, in the EU framework a new directive has been adopted: Directive (EU) 2024/825 of the European Parliament and of the Council of 28 February 2024, amending Directives 2005/29/EC and 2011/83/EU as regards empowering consumers for the green transition through better protection against unfair practices and through better information.

This new directive introduces into European consumer law specific rules to tackle unfair commercial practices that mislead consumers and prevent them from making sustainable consumption choices, such as practices associated with the early obsolescence of goods, misleading environmental claims (“greenwashing”), misleading information about the social characteristics of products or traders’ businesses, or non-transparent and non-credible sustainability labels.

The Spanish government has published a guide for the application of this new regulation and has announced its early application in Spain in 2025 through forthcoming local legislation, which is currently under parliamentary review.

Spanish society is becoming increasingly conscious of the importance of respecting cultural diversity and sexual orientation, while also actively opposing gender inequality. Stereotyping women and promoting sexist narratives are broadly rejected.

In this context, in the summer of 2024 an aesthetic medicine clinic was forced to withdraw an advertising campaign promoting its breast surgery services for women, with the slogan “Just another summer changing the beach scene”. The campaign generated great controversy in Spanish society as it was considered to objectify women as part of the beach scene and was widely rejected. The company was forced to withdraw the advert.

The latest government in Spain is formed by the union of various progressive political parties, which on several occasions have announced their concern about the advertising of certain products that may affect children and their development.

Thus, new regulations have been adopted on online advertising, markets in crypto-assets, gambling, influencers, and the food and drinks industry.

According to Spanish regulations, “misleading advertising” is defined as advertising that in any way induces or is likely to induce erroneous conclusions in users when such advertising refers to:

• the characteristics of goods, activities or services;
• the price, legal and financial conditions of purchase;
• the use and delivery of the products; or
• the performance of the services and after-sales services.

The most important principle is the principle of truthfulness. According to this principle, the advertiser has the obligation to make every effort to ensure that all messages included in the advertisement are understandable to the consumer and to prevent prominent messages from obscuring the main message addressed to the consumer. Thus, advertisers must be able to justify their claims if required to do so and in any case in the event of a complaint. The substantiation must be based on objective, true and demonstrable facts.

Autocontrol has established that advertising must be analysed globally, including all its elements. If such analysis concludes that the overall meaning of the advertisement conveys a credible message, the advertisement will not be considered misleading.

Advertising claims are not subject to specific regulation; instead, the general rules apply, including the principle of truthfulness that all advertising and claims must respect.

The advertiser must be prepared to substantiate the claims at the time of disclosure of the advertisement, as the burden of proof as to the truthfulness of the claim is on the advertiser.

For this purpose, disclaimers and footnotes can be used to disclose any information that is relevant to the advertised offer.

When it comes to substantiating claims, various forms of evidence are admissible. Tests, studies, and technical or scientific data are common methods, but any material that supports the claim’s veracity can be used. It is important to note that if an advertising claim relies on specific tests, studies, or scientific data, the advertiser must disclose who conducted the research and its completion status.

Advertising that depicts or demonstrates the performance of a product must not be misleading and must reflect the actual use and experience that the consumer would have with the product.

Advertisements for products primarily intended for children, such as toys, must not be misleading as to their characteristics (eg, size), their safety, or the capacity and skills necessary for the child to use them without causing harm to himself/herself. The use of expressions or claims that incite children to buy the advertised products or persuade their parents or other adults to buy the advertised products for them is prohibited.

In relation to medical devices, the Medical Devices Act (Royal Decree 1591/2009) allows products that do not comply with its provisions to be demonstrated at fairs and exhibitions, provided that sufficiently visible notices are placed on the products themselves expressly stating that the products cannot be marketed until all requirements of the applicable law are met. Under no circumstances is the use of the products by patients permitted in these demonstrations.

In Spain, there are no general legal provisions regarding testimonials used in advertising, except in relation to the advertising of the following:

• Health products: Testimonials from health professionals, celebrities or people well-known to the public, or real or supposed patients as a means of inducing consumption or use, are prohibited.
• Gambling: The appearance in commercial communications of people or characters of public relevance or notoriety, whether real or fictional, is prohibited.
• Advertising targeted at children: Food or beverage advertising directed at minors may not feature characters known or famous among the general public who enjoy a high degree of popularity among children. 

Autocontrol’s Code of Advertising Practice contains provisions on testimonials and determines that when advertising includes recommendations and/or testimonials, they must be truthful. Truthfulness should apply both to the person giving the testimony and to the content of the recommendation and/or testimony. The advertiser must have the written authorisation of the testimonial, and it is the advertiser’s responsibility to prove the truthfulness of the advertisement. In those cases in which the message, due to its formal or content characteristics, may mislead the user about its sponsorship, the sponsored nature of the testimony must be made clear by means of an appropriate warning.

According to the Unfair Competition Act, all companies using testimonials must take, in advance, proportionate and reasonable steps to verify the genuine and truthful origin of such testimonials. Adding or commissioning the inclusion of false or misrepresented consumer reviews and/or misrepresenting consumer or social media user reviews for the purpose of promoting goods or services is strictly prohibited.

Advertisers are responsible for ensuring that all claims, express or implied, are truthful and substantiated.

There is no express regulation in Spain on the use of disclosures in advertising, but they must respect the principles of truthfulness and legality applicable to all advertising.

To this end, disclaimers and footnotes may be used to disclose any information that is relevant to the advertised offering. However, these disclaimers and footnotes must be incorporated in a place and size that can be easily read by the consumer; otherwise, the advertisement may be considered misleading.

The Spanish general advertising law considers unlawful advertising to be advertising that violates the dignity of the person or violates the values and rights recognised in the Spanish Constitution.

In particular, it expressly prohibits advertisements that present women in a degrading manner, either by using their bodies or parts thereof as mere objects unrelated to the product to be promoted, or by using their image associated with stereotyped behaviours, thus promoting violence against people.

Likewise, any form of advertising that promotes violence or discrimination in any form against minors, or promotes stereotypes of a sexist, racist, aesthetic, homophobic or transphobic nature or on the grounds of disability, as well as that which promotes prostitution, is considered illegal advertising.

Advertising that promotes commercial practices of surrogacy is also considered unlawful.

The Spanish Best Practice Code on Environmental Claims in Commercial Communications, developed by the government of Spain in 2009, involves a commitment to promoting social responsibility in advertising, especially in terms of the truthfulness and legality of the environmental arguments used. This code applies to all advertising in Spain that contains environmental arguments and promotes the responsible use of these arguments, avoiding the abuse of consumers” environmental concerns and the exploitation of their lack of knowledge.

The code establishes ethical principles such as legality, loyalty, social responsibility, truthfulness and objectivity:

• Commercial communications containing environmental claims must comply with current legislation, regardless of their content, medium or format. They must also comply with the principles of good faith, ethical business practices and social responsibility. They should not promote environmentally damaging behaviour.
• Environmental arguments should be truthful and updated as necessary. They should be based on objective and verifiable evidence.
• Simple and precise language should be used, avoiding exaggeration and ambiguity. Environmental benefit claims should be specific, relevant and objective, clearly indicating to which product, component or life cycle stage they refer.
• Generic claims about environmental benefits should be avoided unless justified. Any additional or explanatory information should be presented in a way that is understood to be read alongside the environmental argument, without essentially contradicting or limiting it.
• Comparative or environmental superiority arguments must be specific and based on a clear basis of comparison. Environmental superiority can only be claimed if a significant advantage can be demonstrated, and the products compared must serve the same purpose and meet the same needs.
• Environmental impact reduction claims must clearly specify what has been reduced and be justified by significant improvements in the life cycle of the product. Claims on the absence of certain components are only valid if the level of the specified substance does not exceed its detection limit.

The code also provides definitions and guidelines for the use of a number of common environmental claims, including “recyclable”, “recycled”, “reduced energy consumption”, “reduced water consumption”, “reduced resource use”, “reusable” and “waste reduction”.

In the EU framework, the recent Directive (EU) 2024/825 of the European Parliament and of the Council of 28 February 2024, clarifies misleading commercial practices that should be prohibited:

• The first misleading commercial practice is making generic environmental claims without being able to demonstrate recognised excellent environmental performance relevant to the claim. Examples of generic environmental claims include “environmentally friendly”, “eco-friendly”, “green”, “nature’s friend”, “ecological”, “environmentally correct”, “climate friendly”, “gentle on the environment”, “carbon friendly”, “energy efficient”, “biodegradable”, “biobased” or similar statements that suggest or create the impression of excellent environmental performance. In any case, generic claims such as “conscious”, “sustainable” or “responsible” based exclusively on recognised excellent environmental performance are not allowed, as such claims refer to other characteristics in addition to environmental characteristics, such as social characteristics.
• The second misleading commercial practice is making an environmental claim about the entire product or the trader’s entire business, when it actually concerns only a certain aspect of the product or a specific, unrepresentative activity of the trader’s business.
• The third misleading commercial practice is making claims, based on the offsetting of greenhouse gas emissions, that a product (goods or services) has a neutral, reduced, or positive impact on the environment in terms of greenhouse gas emissions. Such claims are prohibited in all circumstances as they mislead consumers by making them believe that such claims relate to the product itself or to the supply and production of that product, or give the false impression to consumers that the consumption of that product does not have an environmental impact. Examples of such claims are “climate neutral”, “CO₂-neutral certified”, “carbon positive”, “climate net zero”, “climate compensated”, “reduced climate impact” and “limited CO₂ footprint”.

In conclusion, the advertiser must be able to justify and demonstrate any names, claims or any other elements used for the promotion or sale of a product, as well as the excellent environmental performance related to the advertised product, in order to avoid misleading consumers about the environmental characteristics of a product.

In Spain, there are no special laws or guidance related to dark patterns in advertising. However, such practices are prohibited because any conduct containing false information or which, although truthful, by its content or presentation leads or is likely to lead users to erroneous conclusions and is therefore likely to alter their economic behaviour, is considered to be unfair by reason of being misleading.

From a data protection point of view, it is also prohibited to process personal data using dark patterns. The Spanish Data Protection Agency, after several warnings about the use of dark patterns, imposed its first sanction against this practice in 2023, issuing a fine of EUR5,000.

Advertising directed at children should be handled with extreme diligence. In addition to complying with the general advertising rules, advertising aimed at minors should not exploit the naivety, immaturity, inexperience or credulity of children or adolescents, nor take advantage of their sense of loyalty, nor contain statements or visual presentations that may harm them mentally, morally or physically.

According to the General Advertising Act, advertising directed at minors which incites them to purchase a good or service by exploiting their inexperience or credulity, or in which they appear to persuade parents or guardians to purchase, is unlawful. Children may not, without good reason, be presented in dangerous situations. It must not be misleading as to the characteristics of the products, their safety, or the ability and skills necessary for the child to use them without harm to himself/herself or others.

On the other hand, advertising through video-sharing services via platforms that encourage harmful or disruptive behaviour in minors requires age verification and limiting access to users of legal age.

The Self-Regulation Code for Children’s Toy Advertising signed by the Ministry of Consumer Affairs, the Spanish Association of Toy Manufacturers (AEFJ) and Autocontrol, aims to make toy commercials more egalitarian, truthful and constructive. It promotes a diverse, equal, and stereotype-free portrayal of children. To achieve this, the code prohibits the depiction of girls with sexualised connotations and bans the exclusive association of certain toys – such as those representing caregiving, domestic work, or beauty – with girls, and toys linked to action, physical activity, or technology with boys. In addition:

• The use of characters such as TV presenters or participants in TV programmes, characters – real or fictional – from films or series, characters from sports or music, participants in talent shows, etc, in toy advertising aimed at minors is only possible if the toy promoted is directly related to these characters or to a characteristic element of these characters.
• The sending of advertisements to children under the age of 14 via email or other equivalent means of individual communication by the advertiser is not permitted unless expressly requested or authorised by their parent or guardian.
• The sending of advertisements to mobile devices (including mobile phones, handheld game consoles, tablets and smart watches) to children under the age of 14 is not permitted.

Branded content generated by a company is not expressly regulated but is unequivocally considered “advertising” under the General Advertising Act.

In this context, the Unfair Competition Act makes it clear that promotional practices disguised as information in the media – where the advertiser has paid for the promotion – are deemed misleading if it is not made obvious to the consumer, either through content, images, or sound, that it is advertising. Therefore, consumers must always be able to easily identify advertising content and distinguish it from editorial or other types of content. Advertorials are explicitly classified as misleading advertising.

According to the Spanish Act of Information Society Services “commercial communications by electronic means shall be clearly identifiable as such and the natural or legal person on behalf of whom they are made must also be clearly identifiable”. In the case of commercial communications sent by electronic means, the communications must include, at the start of such communication, the word “advertising” or “advertisement”. Failure to comply with these provisions on commercial communications, promotional offers and contests constitutes a minor infringement, punishable by a fine of up to EUR30,000.

In the case of TV advertising, the General Audio-Visual Communication Act requires that any type of content that, when broadcast, could confuse the viewer about its actors or characters must permanently include, in a way that is clearly legible, the word “advertising”. In addition, when the advertisement is included in the form of product placement, an indication that the content constitutes advertising must be included.

Finally, all influencers must make it clear if there is a sponsor or company paying for their endorsements. Spanish law requires the words “advertising” or “ad” (“publicidad” or “publi”) to be included in Spanish when influencers are participating in sponsored campaigns.

Spanish legislation does not contain a specific regulation on the use of claims, nor on how certain specific claims should be used. This means that each individual case must be analysed on a case-by-case basis. For example, in Spain the promotion of sales with accompanying gifts is perfectly legal and the claim “free” can be used but is subject to certain rules. “Two for one”, “get one free” or “three for two” offers, bonuses, vouchers offering a future discount, or bonus points that allow the customer to obtain free goods in the future, are all common.

The gift/prize must be provided within three months of the moment when the consumer fulfils the condition of the promotion (usually the purchase). Moreover, any gift that has been offered on the packaging of the product must be available for at least three months from the end of the promotion. Specific regulations apply to particular types of goods. For example, it is prohibited to offer any kind of promotional gifts in the medicinal and pharmaceutical sectors.

In any case, it is considered a misleading commercial practice and, thus, unfair, to describe a product as “free”, “without charge” or similar if the consumer has to pay anything beyond the unavoidable expenses of responding to the offer and arranging delivery.

According to the Unfair Competition Act, public comparison, including comparative advertising, by means of an explicit or implicit allusion to a competitor is permitted if it meets the following requirements:

• The goods or services being compared must serve the same purpose or satisfy the same needs.
• The comparison shall be made objectively between one or more essential, relevant, verifiable and representative characteristics of the goods or services, which may include price.
• In the case of products covered by a designation of origin or geographical indication, the comparison may only be made with other products of the same designation.
• Goods or services may not be presented as imitations or replicas of other goods or services to which a protected trade mark or trade name applies.
• The comparison does not contravene the provisions on misleading actions, denigration, and exploitation of a reputation or confusion of consumers.

Comparative advertising is permitted in Spain but is subject to a stringent legal regime to protect both the interests of consumers and the interests of the competitor. Advertisements can explicitly or implicitly allude to and/or identify competitors but must always be truthful and must not be expressed in disdainful or denigrating terms.

In the case of acceptable comparative advertising, advertising may contain, explicitly or implicitly, reference to distinctive signs of another advertiser.

Beyond that, it is strictly forbidden to imitate the general outline, text, slogan, distinctive signs, visual presentation, music or sound effects of other national or foreign advertisements, even if these ads are no longer in use, provided they are protected by intellectual property rights.

An advertiser can challenge a competitor’s claims through either of the following two options:

• A complaint with Autocontrol: Autocontrol’s decisions are binding only on its member companies or if the defendant (if not a member of Autocontrol) accepts voluntarily to submit the case to arbitration. Autocontrol does not impose fines but can order the withdrawal of the advertisement or its modification.
• Legal action for unlawful advertising: Actions against unlawful advertising shall be those generally established for actions arising from unfair competition, but it would be a long and difficult procedure. This claim can be brought before any competent national court. Under the Unfair Competition Act, the courts may impose the following measures against acts of unfair competition and illegal advertising:
1. declare the illegality of the act;
2. stop the unfair conduct or ban its future reiteration and prohibit this conduct;
3. remove the effects of the unfair act;
4. rectify misleading, incorrect or false information;
5. compensation for damages caused by the unfair act, if intent or gross negligence are involved; and
6. award damages on the basis of a declaration of unjust enrichment where the unfair act infringes a legal position protected by an exclusive right or another right of similar economic substance.

In judgments upholding the scenarios indicated in a) to d) above, the court may, at the defendant’s expense, order the publication of all or part of the judgment or, where the effects of the infringement are likely to be maintained over time, a rectifying declaration.

Spain has no specific provisions on ambush marketing and there is hardly any legislation in relation to this matter. Most ambush marketing campaigns do not generally infringe trade marks, copyright, unfair competition or advertising regulations, as they do not promote false qualities, nor do they make false or misleading promises to the consumer. In these cases, even if it is an aggressive marketing practice, there is no possibility of prohibiting or sanctioning ambush marketing, since, in principle, it is not forbidden under Spanish law.

Advertising practices in social media are covered by the general rules applicable to advertising. These require advertising to be truthful, legal, honest and fair, and must not mislead the consumer or user. Both the advertiser and the advertising message must be clearly identifiable. Surreptitious advertising is strictly prohibited.

The Autocontrol Code of Advertising Practice states that advertising in electronic communications media must be conducted with a sense of social responsibility and should not exploit the good faith of the audience. Furthermore, it prohibits content which could be discriminatory (for reasons of nationality, race, sex, sexual orientation, religious or political convictions), against personal dignity or incites the commission of unlawful acts.

Advertising communications in electronic media must respect the intellectual and industrial property rights of third parties other than those of the advertiser.

Other specific requirements on transparency are applicable to digital advertising as a consequence of the EU Digital Services Act.

Social networks shall be subject to compliance with the provisions of the General Audiovisual Communication Act to the extent that they can be subsumed under the definition of “video-sharing platform service” – ie, where the provision of user-generated programmes and videos can be considered an essential function of the social media or network services provided that such audiovisual content is not merely ancillary or constitutes a minimal part of the activities of such a service.

In general, the advertiser is responsible for the content of its websites and social media channel. In fact, the advertiser would be considered a service provider. Thus, the service provider is obliged, upon obtaining actual knowledge or awareness of illegal activities, to expeditiously remove or disable access to the information concerned. This obligation applies regardless of whether the content was posted by the advertiser, their contractual partners, or users of the advertiser’s website or social media channels.

There are no special rules that apply to online disclosures and disclosures in social media, so the general rules outlined in 4.2 Liability for Third-Party Content apply.

There are no special requirements or restrictions for the use of social media platforms in Spain. However, all use of social media platforms, in addition to respecting the terms and conditions established by the platform, must respect current legislation and the general principles governing advertising in Spain.

Information is a fundamental part of any advertising action. The recipients of native advertising must be clearly informed that they are dealing with advertising, and not with any other type of non-advertising content.

This does not mean that the word “advertising” must always and in every case appear, nor that it must be mentioned in every image, but that the recipient must have sufficient information to know that he or she is indeed looking at advertising. It must also be clear who the advertiser or brand behind the advertising action is. Failing to do so can be considered misleading advertising under the Unfair Competition Act, which states that “practices that include communications to promote a good or service as information in the media, with the advertiser paying for such promotion, without making clear in the content or by images or sounds clearly identifiable to the consumer or user that this is advertising content” are considered misleading advertising.

The use of influencers in advertising is perfectly valid in Spain. However, it must be taken into account that the content created by influencers is advertising. Thus, the general principles governing advertising in Spain must be observed (legality, truthfulness, honesty, etc).

The General Audio-Visual Communication Act establishes that influencers who use video exchange services through a platform are considered to be audiovisual communication service providers and must respect the general principles of audiovisual communication and the obligations for the protection of minors. Influencers that meet certain requirements based on the number of followers and income generated must register in the State Registry of Audiovisual Communication Service Providers.

It must be obvious that an influencer’s content is advertising. Usually when labelling ads on social media a hashtag is used, given its function on platforms such as Instagram. However, it is the label itself that is important, rather than the use of a hashtag.

Any label that an influencer uses to disclose advertising must be displayed upfront (ie, before consumers click through or engage with the content), prominent, appropriate for the channel, and suitable for all devices. Inserting the label at the end of a long caption, for example, where the consumer has to scroll or click to see it, or hiding it amongst other hashtags, will not be compliant.

In addition, the label regarding the advertising nature of the reference or content, must remain or be added when the influencer shares or “reposts” content on other social media, platforms or web pages.

Autocontrol’s Influencers Code recommends including the disclosure at the very beginning of a post, in a title, a thumbnail, or an image. This Code includes an example list of recommended locations of the identification for advertising references or content:

• blogs: include the identifying word or label in the title of the post;
• Facebook: include the identifying word or label in the title of the entry or post;
• Instagram: include the identifying word or label in the title above the photo or at the beginning of the displayed text; if only one image is seen, the image itself must include the identifying word or label at the beginning of the message (the advertising identification label established by the platform itself (paid partnership tag) can also be used);
• Pinterest: include the identifying word or label at the beginning of the message;
• Twitter: include the identifying word or label in the body of the message as a tag;
• vlogs: superimpose the identifying word or label while commenting on the product or service, or state it out loud before talking about the promoted product or service;
• YouTube and other video platforms, such as Musical.ly and Twitch: superimpose the identifying word or label while commenting on the product or service, or state it out loud before talking about the promoted product or service; and
• Snapchat: include the identifying word or label in the body of the message as a tag.

Per the Code of Conduct on the Use of Influencers In Advertising, “advertising content” necessarily implies that “the advertiser or its agents exercise editorial control over the published content, previously establishing all or part of it and/or validating it”.

However, the General Audio-Visual Communication Act specifically states that influencers are editorially responsible for the audiovisual content made available to the public through their services.

Therefore, both the influencer and the advertiser can be held liable for the content generated by the influencer. In fact, it is common to find complaints before Autocontrol directed against both the influencer and the advertiser.

Adopting a conservative and strict approach is suggested, especially since the General Advertising Law considers the work of influencers as an advertising medium (obliged to respect the limits of illegal advertising in all its variants, including surreptitious advertising) and the Unfair Competition Act, which regulates surreptitious advertising, emphasises that advertising that lacks transparency about its promotional intent is considered unlawful.

Commercial practices where a trader provides access to consumer reviews of goods and services shall contain information on whether or not the trader ensures that such published reviews have been made by consumers who have actually used or purchased the goods or services. To this end, the trader shall provide clear information to consumers on how the reviews are processed.

The publication of false or manufacturer-paid reviews and ratings on products for sale on the internet is prohibited, and it is considered an unfair practice to include reviews from consumers without verifying that they have actually purchased the good.

The advertiser is solely and exclusively responsible for compliance with the information and accuracy requirements of the reviews. Non-compliance with these requirements is considered a misleading, unfair practice.

The burden of proof regarding compliance with the information and truthfulness requirements of the reviews lies with the advertiser.

In Spain, it is forbidden to send advertising or promotional communications by email or any other electronic means such as text messaging, messaging services apps, etc, that have not been previously requested or expressly authorised by the recipients thereof, unless their data was collected due to a previous business relationship.

In any case, in all communications, advertisers must provide users with an easy and free procedure to get data removed at any time (“opt-out option”), and any commercial communication must comply with the information required by law.

Failure to comply with these provisions on commercial communications, constitutes a minor infringement, punishable by a fine of up to EUR30,000.

In general, sending unauthorised commercial communications may also constitute a breach of data protection legislation. Individuals are entitled to file claims before the Spanish Data Protection Agency (AEPD) both by name or anonymously, reporting violations of their own or third parties’ privacy rights. The AEPD may impose the administrative fines laid down by the EU General Data Protection Regulation (Regulation (EU) 2016/679).

Telephone spam and unsolicited commercial communication by telephone, fax or other equivalent means of communication, for commercial purposes are prohibited, unless there is prior consent from the user to receive this type of commercial communication or unless the communication can be supported by a legitimate interest of the advertiser as a basis for legitimising the processing of personal data.

Whether the consumer has consented to receive commercial telephone calls, at the beginning of the telephone call, the identity of the advertiser or, if applicable, the identity of the person on whose behalf the call is being made, as well as the commercial purpose of the call, must be explicitly and clearly stated. Under no circumstances may telephone calls be made before 09.00 or after 21:00, or on public holidays or weekends. Furthermore, concealing or disguising the sender’s identity is strictly prohibited.

The use by the advertiser of an automated calling system without human intervention or telefax requires the prior express consent of the consumer.

The consumer has the right to object to receiving unwanted commercial offers, by telephone, fax or other equivalent means of communication, and should be offered such a choice on every call.

The same restrictions that apply to email marketing apply to text messages.

This type of advertising usually involves data processing based on user preferences and/or user profiling. It therefore requires the express authorisation of the data subject.

Any entity that carries out these actions must appoint a DPO who must be registered on the AEPD list.

In addition, the AEPD has included this type of data processing among those included in its “Black List” that require a risk impact assessment, if the data processing allows the identification of users.

The processing of personal data of a minor may only be based on his or her consent if he or she is over 14 years of age. For minors under 14 years of age, consent must be given by their parents or legal guardians.

The General Audio-Visual Communication Act restricts the use of minors’ personal data when it has been collected or otherwise generated by providers of the video sharing service through a digital platform. Such data shall not be processed for commercial purposes, including but not limited to direct marketing, profiling, or personalised behavioural advertising.

Autocontrol and the Spanish Data Protection Authority have developed the Code of Conduct on Data Processing in Advertising. This Code applies to the processing of data for advertising purposes or relating to advertising carried out by adhered entities, such as:

• sending of commercial communications, including those cases in which the data subject is registered in an advertising exclusion list;
• promotions performed with the aim of collecting personal data, to be used for advertising purposes;
• the use of cookies and similar technologies to manage advertising spaces or carry out behavioural advertising;
• profiling for advertising purposes; and
• any other processing of personal data in connection with advertising activities (eg, the exercise of rights); the Code also regulates the procedure for the extrajudicial resolution of data protection disputes between adhered entities and data subjects.

In Spain, prize promotions, such as sweepstakes and contests, are considered “random combination”. Random combinations are defined as a “draw aimed exclusively at advertising or promoting a product or service, whose sole compensation is the consumption of said product or service, without surcharge or tariff, which offer cash, in-kind or service prizes and, in certain cases, require registering as a client of the entity being advertised or promoted”.

The only restriction is that participants must not make an additional payment in order to participate. Examples of additional payment are premium SMS or premium calls. Standard postage, SMS or call charges would generally not be regarded as additional payments (unless the call takes too long, or several standard SMS messages are required). Prior purchases of products without extra charges, or a condition that participants be a client of the sponsor, are not considered to be additional payment.

However, for chance-based sweepstakes/prize draws, the Gambling Regulation applies, and a gaming tax of 10% of the prize value should be paid. Conversely, skill-based contests without any element of chance fall outside the scope of Gambling Regulation and are not subject to this tax.

Regardless of the promotion type, winners should be aware of potential tax obligations. Prizes exceeding EUR300 may be subject to personal income tax, requiring winners to pay withholdings or deposits in advance, as stipulated by current tax laws.

Whereas games of chance require an element of luck or chance, in a skill-based contest the winner must be chosen based on skill and no element of chance must be involved. 

It is crucial to ensure that skill-based contests remain entirely free from any element of chance; eg, if the winners are chosen based on skill but in the event of a tie between finalists, a draw is held to determine who will be the overall winner, then it would automatically become a game of chance.

Even promotions that award prizes to the first 100 participants can sometimes be deemed chance-based. This occurs when the element of skill involved is minimal or non-existent.

No major requirements exist in relation to chance-based sweepstakes and contests. Notably, there is no requirement to obtain a license, authorisation, or make any prior notification to the authorities.

In Spain, sales promotions with accompanying gifts are legal but subject to certain rules. Retail commerce regulations regulate these types of sales where the purpose is promoting sales, another product, a free service, or a specially reduced price. This gift/prize can be offered to the consumer automatically or by participating in sweepstakes or contest. If the gift consists of entry into a sweepstakes, the applicable regulations must be observed.

The gift/prize must be provided within three months of the moment when the consumer fulfils the condition of the promotion (usually the purchase). Moreover, any gift that has been offered on the packaging of the product must be available for at least three months from the end of the promotion. Specific regulations apply to particular types of goods. For example, it is prohibited to offer any kind of promotional gifts in the medicinal and pharmaceutical sectors.

In any case, it is considered a misleading commercial practice and, thus, unfair, to describe a product as “free”, “without charge” or similar if the consumer has to pay anything beyond the unavoidable expenses of responding to the offer and arranging delivery.

Consumers shall be informed in a clear and comprehensible manner about the duration of the contract, and in the case of automatic renewal of subscriptions, about the conditions for termination; ie, how to communicate their wish to terminate the contract and when it should be communicated.

Customers must be informed about the automatic renewal and termination conditions of the subscription, regardless of the sales channel or whether the initial transaction is initiated by the advertiser or the customer.

The only requirement is to clearly inform the customer, prior to the subscription purchase, of the initial price and the price applicable to the renewal.

Notices when the subscription is about to renew are not required but recommended.

Typically, reminders are sent 30-60 days prior to the renewal date, outlining the renewal terms and providing clear instructions on how to cancel the subscription.

There is no specific regulation on the use of artificial intelligence in relation to the development of advertising content. However, the EU Artificial Intelligence Act (Regulation (EU) 2024/1689) prohibits the placing on the market, the putting into service or the use of an AI system that deploys subliminal techniques beyond a person’s consciousness or purposefully manipulative or deceptive techniques, with the objective, or the effect of materially distorting the behaviour of a person or a group of persons by appreciably impairing their ability to make an informed decision, thereby causing them to take a decision that they would not have otherwise taken in a manner that causes or is reasonably likely to cause that person, another person or group of persons significant harm.

Although there are no special rules or guidance regarding the claim that a product has been developed through the use of AI, is AI-powered or has AI-related capabilities, the principle of truthfulness that governs all advertising must be taken into account.

Thus, such claims must be made in a way that does not mislead the consumer; otherwise, they would be considered an unfair competition act.

There is no specific regulation in Spain on the use of chatbots. However, a new regulation on customer services is currently being processed. This future regulation will prohibit the exclusive handling of customer calls through answering machines or chatbots based on artificial intelligence systems. In this way, customers will be able to ask to speak directly to a physical person at any time during the consultation or complaint.

Advertising of crypto-assets is regulated by Circular 1/2022 of 10 January 2022 of the Spanish National Securities Market Commission (CNMV), on crypto-asset advertising.

Among others, the following principles must be observed:

• Any crypto-asset advertising must be clear, balanced and fair, and the messages shall provide information on the risks of the product which is easily understandable and visible.
• Any crypto-asset advertising must include the following message: “Investments in crypto-assets are not regulated. They may not be appropriate for retail investors and the full amount invested may be lost”. In addition, links or indications to access further information shall be included, with messages such as: “It is important to read and understand the risks of this investment, which are explained in detail at this link”.
• The information contained in commercial communications must be consistent and may not contradict the information or warnings that the regulated entities provide to customers in the marketing of crypto-assets.
• Commercial communications and advertising pieces providing information on the cost or profitability of a crypto-asset shall contain clear, accurate, sufficient and updated information, in a manner appropriate to its nature and complexity, the characteristics of the means of dissemination used and the target audience to which they are addressed.
• Any crypto-asset advertising must avoid making references to high past profitability.
• When advertising space or time constraints prevent the inclusion of all essential information and risk warnings about a crypto-asset, the advertisement must clearly direct consumers to readily accessible alternative sources where this information can be found. This could include a website, or a secondary, more detailed advertisement.
• Any mention of limitations or exclusions of the responsibility of the regulated entities for the content of advertising should be avoided.
• When an offer has a specific term, this shall be expressly stated.
• The use of the term “gift” or any other equivalent term shall be avoided in those cases in which there may be a tax repercussion due to the delivery of a good or a sum of money as an incentive to operate with a crypto-asset.

Advertising activity directed at investors in Spain will not require prior notice to the CNMV, except in in the case of mass advertising campaigns, defined as those addressed to 100,000 people or more. In such cases, it must be communicated to the CNMV at least ten days in advance.

There are no special laws or regulations in Spain applicable to advertising in the metaverse. However, the general rules on advertising apply.

The following products are specifically regulated in Spain:

• Alcohol: Advertising of alcoholic beverages is prohibited:
1. with an alcohol content exceeding 20% on television except between 01:00 and 05:00;
2. with an alcohol content exceeding 20% in places where its sale and consumption are prohibited;
3. with an alcohol content of less than 20% when broadcast on television outside the period 20:30 to 05:00, unless such advertising forms an indivisible part of the broadcast content; and
4. that promotes irresponsible consumption or consumption associated with enhanced physical performance, vehicle driving, social success or health.
• In addition, Spanish alcohol producers in the beer, wine and spirits sectors have established their own self-regulatory codes.
• Tobacco: It is prohibited to advertise or promote tobacco products across all media platforms. Broadcasting of programmes or images featuring people smoking or showing trade marks, trade names or signs associated with tobacco products is prohibited across all media platforms. However, the law provides some exceptions for advertising in tobacco shops and in publications aimed at tobacco trade professionals.
• Therapeutic goods and services: Regulations on advertising and promotion of products, activities and services with intended health purposes establish a series of restrictions and bans relating to advertising products, materials, substances, energies or methods that are announced and presented as useful for diagnosis, prevention or treatment of diseases, weight loss change or correction of physical or psychological conditions or physiological and other alleged health purposes. Any product, material, substance, energy or method that claims preventive, diagnostic or therapeutic purposes must meet the claims being promised and are subject to authorisations or controls according to the General Health Law and the Medicines Act.
• Food: Spanish legislation contains a series of regulations on food safety and nutrition as well as on health claims made in advertising. Among other restrictions, the presentation and advertising of food must not mislead consumers as to:
1. the product’s characteristics;
2. the product’s properties or effects;
3. any “special” characteristics (when possessed by all similar products); and
4. products’ preventive, therapeutic or healing properties.
• Gambling: Gambling operators must have an authorisation certificate. This certificate should authorise the gambling operator’s advertising, sponsorship or promotion. Moreover, the Code of Conduct on Advertising of Gambling Activities imposes additional rules on game operators. Under the Code, gambling operators must meet the principles of veracity, legality and loyalty. In general:
1. The advertisement should include a responsible gambling message.
2. The commercial communications of the game operators must respect the principle of social responsibility. They may not be directly or indirectly addressed to minors and must include a message that minors may not participate in gambling activities, such as “no minors”, “18+” or similar.
3. The following are forbidden:
1. sponsorship of sporting events;
2. use of the name, trade mark or commercial name of a game operator to identify sports facilities or any leisure centre;
3. to substitute or add to the name of a sports team or competition, the name or company name of a game operator; and
4. sponsorship on sports jerseys or equipment;
4. Operators may only advertise to their own customers. Promotions to attract new customers are prohibited.
5. The appearance in commercial communications of people or characters of public relevance or notoriety, whether real or fictional, is prohibited.
6. Commercial communications sent by postal mail are prohibited.
7. Commercial communications by game operators in audiovisual communication services may only be broadcast between 01:00 and 05:00.
8. The online dissemination of commercial communications by gambling operators is strictly regulated.
• Lotteries: Only the state lottery and betting societies can run national lotteries. However, the government can authorise the management and marketing of lottery games, provided that the lotteries are conducted by non-profit entities with charitable purposes and comply with the legal requirements.
• Financial services: Advertising of financial investments and banking products or services is also regulated by specific legal provisions whose compliance is supervised by the financial market authorities (Banco de España, which is Central Spanish Bank, and the CNMV, the competent body for the financial market and stock exchange).
• Medicines: Advertising of medicines is highly regulated and monitored by the Health Administrations (national and regional). Although it has no legal biding effect, it is also helpful to consider the 2019 Guideline of the Ministry of Health on advertising of medicinal products directed to the general public. There are also a number of self-regulatory codes to take into account from sectorial associations (ie, ANEFP, AESEG, and FarmaIndustria).

Product placement is generally allowed in all types of entertainment content except:

• news programmes;
• consumer protection programmes;
• religious programmes; and
• children’s programmes.

Product placement must comply with the following conditions:

• It must not influence the editorial content and the organisation of the programme schedule and catalogue in a way that affects the responsibility and editorial independence of the audiovisual media service provider.

• It must not directly incite the purchase or rental of goods or services or include specific promotional references to such goods or services.

• It must not give undue prominence to the products concerned.
• It must be stated that product placement is present in entertainment content.

Television and radio advertising is specifically regulated by the General Audio-Visual Communications Act:

• Service providers of television broadcasting can broadcast a maximum of 144 minutes of advertising between 06:00 and 18:00 and 72 minutes between 18:00 and 24:00.
• Advertising and teleshopping must be clearly differentiated from programmes by acoustic and optical signs. The sound level of advertising messages cannot exceed the average level of the previous programme.
• Television advertisements should respect the integrity of the programme in which it is inserted.
• Certain programmes may only be interrupted once per scheduled 30-minute period and sporting events only during breaks.