Advertising on Twitch, YouTube and other platforms: a lawless terrain?

In this Tribune, Julia Martínez Zaragoza, lawyer in Bardají&Honrado, addresses the issue of advertising in audiovisual content through video sharing or streaming services such as Twitch or YouTube, a field of extensive growth with advertising insertions everywhere.

If we refer in this article to a user profile who does not consume audiovisual content through traditional media (for example, linear television), but rather all the information he has access to comes from video sharing services, I am sure that all (or most) of us are thinking someone close to mind.

And, although the growth that content broadcasting platforms have had in recent years in recent years is undeniable, streamingAs professionals in the sector, it is our obligation to highlight and make reference to the so-called video sharing service providers through the platform due to his exponential growth in recent years and, especially, since the months of quarantine due to Covid-19. So much so, that in 2023 we have been able to see how certain events (for example, The evening of the year o to Kings League, although the latter was later broadcast in Four), have only been transmitted through Twitch.

Its growth is due to its great appeal to its audience that content of all kinds generated by other users (with whom they perhaps feel more identified) and that informs, entertains or educates them, without the platform provider having any any editorial responsibility. Among these providers are, for example, platforms such as Twitch o YouTube.

Los streamers They are surrounded by carefully chosen figures, posters, or messages. The more followers he has, the more important this background and surroundings of his figure will be in actually constituting, and for the most part, advertising.

Who then has editorial responsibility for the content that is shared through these platforms? They are known as streamers, that is, those users who, from their set, share experiences, opinions or activities of all kinds, and that are surrounded by carefully chosen figures, posters, or messages. The more followers you have streamer, the greater importance this background and surroundings of his figure will have in actually constituting, and for the most part, advertising.

In the following lines, we will try to explain what is the legal regime to which these platforms and their users must submit in relation to commercial communications made through them: Are they governed by any code of conduct? Should they comply with the same rules, requirements and conditions established for traditional media?

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Are digital channels regulated?

Before getting into the bottom of the matter, we must know where it is located regulated:

• In 2018, the Directive (EU) 2018/1808 of the European Parliament and of the Council of November 14, 2018, amending Directive 2010/13/EU on the coordination of certain legal, regulatory and administrative provisions of the Member States relating to the provision of audiovisual communication services, taking into account the evolution of realities of the market.
• This norm was transposed into the Spanish legal system through the Law 13/2022, of July 7, General Audiovisual Communication. With its entry into force, this Law repealed the Law that had regulated the matter since 2010, and which was aimed at more “traditional” communication service providers, that is, mainly, free-to-air linear television.

In addition, the provisions of Law 34/1988, of November 11, must be complied with. General Advertising and codes of conduct to which the platforms adhere as a sign of transparency towards consumers.

Precisely, the reform of this regulation arose from the need to establish level playing field between the traditional media (which had to be subject to the provisions of the Law) and those that have been evolving and emerging in recent years to which, in principle, this regime did not apply.

Since the entry into force of the General Law of Audiovisual Communication of 2022, the obligaciones recogidas en la normativa aplicable se extienden a estos “nuevos agentes” del mercado: tanto las plataformas de emisión de contenidos en streaming, like the prestadores de servicio de intercambio de vídeos a través de plataforma.

Estas diferencias vienen reseñadas en la propia exposición de motivos de la Ley General de Comunicación Audiovisual de 2022, que dice: “Los avances técnicos han hecho posible la convergencia entre servicios televisivos y otros servicios de comunicación audiovisual. En paralelo han aparecido new consumer habits that allow ver programas y contenidos audiovisuales en cualquier momento, en cualquier lugar y a través de múltiples dispositivos conectados a redes digitales. All of this has resulted in the diversification of audiovisual formats and a fragmented and globalized audience for which they compete, not only traditional audiovisual communication service providers at the national level, but global providers whose services also reach the Spanish audience”.

Thus, since the entry into force of the General Law of Audiovisual Communication of 2022, the obligaciones recogidas en la normativa aplicable se extienden a estos “nuevos agentes” del mercado: both the content broadcast platforms in streaming, such as video exchange service providers through the platform, as long as they are established in Spain, which is understood to occur in different situations established in the Law itself. In addition, this text also obliges the particularly relevant users who use video sharing services.

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What new audiovisual agents are subject to these standards?

What profiles will be considered as such? Those who meet all the following requirements will be: (i) if they obtain significant income derived from your activity through this platform; (ii) if it is editorial manager on the audiovisual content that you make available to other users; (iii) if it reaches a much of the general public and can have a clear impact on him; (iv) if you use the service to inform, entertain or educate and the main objective of the service is the distribution of audiovisual content, and (v) if the service is offered through electronic communications networks and is established in Spain in accordance with the definition granted by the Law in this regard.

For the purposes of regulations and compliance with obligations, for commercial communications These are images or recordings intended to promote goods, services or images of third parties that accompany or are included in programs or videos generated by the user in exchange for remuneration or similar consideration, or for self-promotion purposes.

Los considered users of special relevance they will be, in the background, equated to traditional media, lo cual puede percibirse como algo desproporcionado dado el contexto en el que se mueven y las características de unos y otros.

La Ley lo prevé como un derecho para los medios de comunicación, y en caso de querer llevarse a cabo, la Ley establece una regulación extensa para los diferentes tipos de comunicaciones comerciales, a saber y en lo que aquí interesa anuncios publicitarios, autopromociones, patrocinios, emplazamientos de producto, telepromociones y televentas. Además, en concreto, recoge: (i) la prohibición to carry out certain advertising (for example, that which violates human dignity, that promotes discrimination for any reason, or encourages behavior harmful to health), and also (ii) respect the regime established for the protection of minors. This is without prejudice to the duty to comply with other obligations established by Law that, as they are not related to advertising, we have not included in this article; (iii) In addition, they must also be governed by the provisions of the General Advertising Law regarding the regulation in the strict sense of the advertising carried out.

For all this and since the entry into force of the General Law of Audiovisual Communication, both the content broadcast platforms in streaming, like the video sharing service providers through platform, as long as they are established in Spain in accordance with the requirements included in said standard, must comply with said regulation.

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The “special relevance”

However, the norm itself has “suspended” the effects on this type of users until the Regulation of the Law that specifies to a greater extent what the requirements that a user must comply with to be considered special relevance. At that time, the users considered as such they will be, in the background, equated to traditional media, lo cual puede percibirse como algo desproporcionado dado el contexto en el que se mueven y las características de unos y otros.

La realidad es que este cambio de paradigma en cuanto al planteamiento de los sujetos a los que obliga esta norma justifica que se conozca a la Ley General de Comunicación Audiovisual del año 2022 como la “Ley de los Youtubers” que, si bien antes se regían por el cumplimiento de los códigos de conducta de las plataformas que utilizaban como medio de comunicación con sus seguidores, ahora deberán asimismo regirse por lo dispuesto en la Ley.

Julia Martínez Zaragoza

Lawyer at Bardají&Honrado