Surreptitious advertising through influencers is unfair

The Second Instance Court of Madrid confirms surreptitious advertising carried out through influencers by a chain of dental clinics on their social networks and website is unfair.

The Judgment of 5 December 2023 handed down by the Second Instance Court of Madrid has adopted the same position as that taken at first instance and confirms that the advertising campaign launched by  a chain of dental clinics through influencers is unfair bearing in mind the circumstances. Also the campaign was considered contrary to the lex specialis on the advertising of medical devices and products.

Firstly, it is established that the defendant’s activity is considered advertising, in the sense of Art.2 of the Spanish General Advertising Law, given that the videos with testimonials from ‘influencers’ or celebrities about the services offered by the defendant had the purpose of promoting its own clinics and the different treatments they offer in the digital sphere, regardless of the fact that it is not carried out through traditional media.

The campaign was considered surreptitious advertising, since the defendant did not warn consumers that they are faced with content with advertising purposes. The defendant argued that the testimonies of the ‘influencers’ would be protected by the freedom of expression to relate personal experiences and opinions, but the Court considered that such fundamental right is limited by the right of consumers to know the nature of the message they receive in order to be able to act freely in the procurement of goods and services.

On the other hand, the ruling confirms the infringement of the applicable norms to the advertising of medical devices and products, insofar as Royal Decree 1591/2009 prohibits the inclusion in the advertising of these products of recommendations by persons who may, due to their notoriety, incite their use.

Jorge Díaz Rodríguez

Abril Abogados