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SubscribeOn 27 March 2026, the Plenary of the AUTOCONTROL Jury issued Resolution 115/R/Febrero 2026, confirming the exoneration of an advertiser for advertising identification violations committed by an influencer, as it was established that the company had provided clear preventive instructions that were breached in an isolated and manifest manner.
Background
The proceedings originated from the complaint filed by the Spanish Communication Users Association (Asociación de Usuarios de la Comunicación, “AUC”) against an Instagram post in which an influencer included an advertising mention of Maybelline, a brand of the L’Oréal group. The AUC alleged that the post breached advertising identification rules for a specific reason: the hashtag «#publi», which indicates that the content is sponsored, did not appear at the beginning of the influencer’s post text, but rather in the middle of it, preventing the consumer from recognising the advertising nature of the content from the outset.
At first instance, the Second Section of the Jury found a violation of rule 13 of the AUTOCONTROL Code of Advertising Conduct, rule 6 of the Code of Conduct for Advertising through Influencers ("Influencer Code") and article 23 of the Online Trust Code of Conduct, considering that the advertising identification was not clear and unequivocal from the outset. However, the complaint was dismissed because the advertiser, L’Oréal, proved that it had provided clear preventive instructions for the influencer to identify the advertising nature at the beginning of the message, so that the violation was attributed exclusively to the content creator’s breach.
In its appeal, the AUC invoked articles 8 to 11 of Law 34/1988, of 11 November, on General Advertising and article 34 of Law 3/1991, of 10 January, on Unfair Competition, arguing that liability should extend to the advertiser. The Plenary dismissed the appeal and upheld the first instance resolution. To this end, it applied rule 12 of the Influencer Code, which allows the advertiser to be exonerated when it proves that the violation stems from an isolated and manifest breach of the instructions given to the influencer. Thus, the Plenary concluded that L’Oréal had proved that it had provided such instructions and that the influencer had acted outside her contractual functions. The resolution confirms that exoneration does not operate automatically: it requires that the breach be isolated —not repeated— and that the advertiser has exercised adequate and sufficient diligence.
Regarding the invocation of the General Advertising Law and the Unfair Competition Law, the Plenary noted that the application of the rules on standing to be sued under article 34 of the latter leads to the same results: when the influencer acts as a collaborator under the advertiser’s instructions and breaches them, they act outside their contractual functions, and therefore liability must be attributed exclusively to the influencer.
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