Influencer Payment Regulations in

Spain

Playbook

The most common payment method used to pay influencers in Spain is through bank transfer and PayPal.

In Spain, you can invoice as a sole trader and send invoices to clients and in other countries. If you plan to trade within the EU you need to register for VAT (IVA) and issue VAT invoices with a valid VAT number. Please note that the reverse charge system applies if the sole trader invoices a client in another EU country.

In Spain, businesses may outsource invoicing operations to a third party or the customer if certain circumstances are met. You may use self-billing, or “autofacturación” in Spanish if the parties have agreed to use self-billing before issuing the invoice. The agreement should preferably be in writing and specify the terms applicable to the self-billing invoice.

As a general rule, gifts are considered to be a form of compensation, and influencers should therefore always report the value of gifts, free travel, and vouchers to their tax authorities. The taxable value is usually based on the commercial value of the gift, travel, or voucher.

It is not uncommon for companies to be legally required to report to tax agencies when they pay out compensation to an influencer. Influencer partnerships are quite different from regular partnerships, compensation may not only include monetary compensation but also gifts, vouchers, and travel. In some countries, all types of compensation sent for “payment” to the influencer should be reported. Therefore, it may be relevant to verify your reporting responsibilities on that matter.

DAC7

DAC7 is a directive on cooperation between different EU member states on gathering and reporting data about natural and legal entities and their earnings through digital platforms and marketplaces. Certain digital platforms are responsible for collecting, verifying, updating, and reporting data about the sellers on the platform and their earnings. ‍Generally, if you are a platform operator, conducting business in the European Union and making available all or part of your platform to sellers, you may have reporting obligations under DAC7. The digital platform has to submit its first report by the 31st of January 2024. Bear in mind that different EU countries may implement the Directive slightly differently.  

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Exchange of income statements to other countries.

As mentioned above, it is not uncommon for companies to be legally required to report to tax agencies when they pay out compensation to an influencer. This obligation may also be applicable if you are working with an influencer from another country. Many countries sign bilateral agreements in which they agree to exchange income statements with each other. This allows tax agencies around the world to have a better overview of the compensation paid out to the people conducting business in their country and better control over who should pay taxes or not. The exchange of income statements is especially relevant when paying out compensation to individuals without a registered activity. It is therefore important to verify your reporting obligations in your country.  

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Additional responsibilities - social fees, withholding of taxes, more

Before drafting an agreement with an influencer, it is important to consider if the person has a registered activity as an influencer or a company. If the influencer is acting as an individual without any registered activity, it is essential to be aware of applicable rules and regulations, as you may have additional responsibilities towards the individual. It is important to understand what legal obligations apply to you. In Spain, if you work with an unregistered individual, you may encounter withholding responsibilities for private individuals. It is important to be fully aware of all the responsibilities before drafting any agreement with an influencer as you may be able, depending on the applicable laws and regulations, to put some of the responsibilities onto the influencer if it is clearly stated in the agreement. It is also important to consider any potential liabilities arising from the agreement. As such, the responsibility of each party should be clearly described in the agreement and preferably regulate topics such as the payment of indirect and direct taxes, reporting to tax authorities, or even social costs.

In most countries, influencer marketing is already regulated by national laws such as consumer protection and marketing laws or specific guidelines.

Considering influencers can reach consumers globally, examining legal implications in various countries is important. Violating the rules can lead to penalties, fines, and legal fees.

It's important to note that there are topics that are usually more strongly regulated within influencer marketing. These commonly include:

• Children and minors.
• Alcohol, religious beliefs, adult content, tobacco, cosmetic procedures, gambling products, and in certain countries politics.

Work on this is progressing quickly both on a national and a global level. It would therefore be wise to keep yourself updated on new laws and guidelines being issued on the topic.

Authorities are increasingly providing interesting data on the topic. The European Consumer Center France offers a list of influencers' obligations and responsibilities in Europe, providing interesting insights into certain EU countries.

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Influencer marketing regulations in Spain

Just like in other countries, Spain has consumer and marketing laws that influencers need to be aware of while conducting their business on various social networks. In Spain, it is illegal to conceal any paid partnerships you post on your social network.

It was not until recently that the Spanish government drafted a bill to fight against scams on social networks, which was adopted by the government on the 9th of July 2022. The bill was adopted to regulate the market on various social networks to guarantee more respectful and lawful advertising and regulate the activities of users on social networks.

The law aims to, in particular, take appropriate measures to protect minors and the public in general from any harmful content that incites hatred, violence, or provocation to commit a terrorist offence or any unlawful behavior. Non-compliance with the regulation can lead to serious fines.

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New decree

Spain leads Europe with over 1.56 million influencers, making up 15% of the continent's social media landscape. The Law 13/2022 on Audiovisual Communication Services, introduced "users of special relevance" (influencers) with specific criteria, such as earning over €500,000 and having 2 million-plus followers. On December 9, 2023, the Ministry of Economic Affairs and Digital Transformation published a draft royal decree, a crucial step in refining the conditions and regulating this evolving industry.

What does this mean for the influencers in Spain?

With the new decree, influencers have certain obligations that need to be fulfilled if they meet the criteria of significant income and audience.

The “users of special relevance” need to:

• Register in the Spanish National Registry of Audiovisual Communication Service Providers.
• Comply with the fundamental principles of audiovisual communication consisting of respect for humans, do not encourage violence, hatred, discrimination, or the commission of a terrorist offense through audiovisual content.
• Take necessary measures to ensure the protection of minors concerning the content so it does not harm their physical, mental, or moral development, etc.
• Follow the rules for displaying ads in their content to prevent hidden or subtle advertising, like product placement.

Penalties for non-compliance with these obligations can reach up to €1.5 million for the most serious infringements.

Learn more about the decree in our blog post.

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Risk of false self-employment

If you are looking to collaborate with independent workers, it is essential to treat them as such. Influencers working independently should be treated differently from employees. It is crucial to provide them with creative and personal freedom, allowing them, for example, to choose and determine their own activities and working hours. To prevent a relationship that could be seen as an employment relationship, it is imperative to draft a clear agreement between the two parties. If the relationship is too close to an employment relationship, it may be viewed as false self-employment. This may come with legal implications for the brand. Without an unambiguous agreement, a clear distinction is not always easy; both influencers and those who use them are often unaware of how the relationship can be viewed by the authorities.

As a rule of thumb, the more instructions you give regarding the services to be performed and the more the person is bound to your organization, the more likely it is that an employment relationship exists. To ensure that your relationship with the influencer is as unambiguous as possible, it is important to make sure that the agreement that is established is fair and offers them the autonomy to choose their own activities and working hours. Also, the relationship should also be independent in facts not only on paper. This should allow for a successful collaboration. In the case of false self-employment, the brand or agency may be responsible for paying employer fees and social costs for the influencer.

An Agreement can take many forms and does not necessarily have to be in writing. However, it’s usually recommended to sign a written agreement with the digital creator before they start to work on a project.

We recommend having a legal professional review the agreement before it's signed, to ensure that it covers all the necessary legal aspects relevant to the relationship at hand. It may be relevant to define the following points in the agreement:

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­1. Define Compensation Structure and Amount

Begin by specifying the type and amount of compensation the influencer will receive for their services. This can be a flat fee, commission-based, or a combination of both. Be transparent about the compensation structure and ensure that the influencer understands whether they are considered an employee or an independent contractor, as this has tax implications.

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2. Outline Payment Schedule and Currency

Establish a clear payment schedule that details whether the influencer will receive a one-time payment or multiple installments. Also, specify the currency in which payments will be made, and discuss potential fluctuations in exchange rates to avoid confusion or disagreements.

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3. Specify Payment Terms for Content Creation and Sharing

One important consideration is whether payment should only be made upon delivery of the post or if there should be two separate fees, one for creating the content and another for sharing it upon approval by the Brand. Clearly state these terms in your agreement to ensure both parties understand when and how payments will be made for each aspect of the influencer's work. It can also be important to regulate how the content can be used again by the brand and how long the post should be up on social networks. 

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4. Detail Payment Methods and Third-Party Involvement

Outline the method of payment, whether it's PayPal, wire transfer, or through a third party. If you're using a third-party service provider, such as Gigapay, to handle payouts and reporting, include this information in the agreement. This helps set expectations and ensures the influencer knows who will send the payment and when to expect it.

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Want to know more about influencer partnership agreements? Use this guide to ensure your agreements cover all essential aspects and foster long-lasting, mutually beneficial relationships with your influencers.