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In 2021, the Federal Supreme Court made four decisions on the topic of influencer marketing. We have created a small guide for you for better orientation.

Influencers have probably been confused about the legal classification of their job for a few years now. What am I allowed to post? And how?

The case law has been rather inconsistent on this. This reflects the different opinions on influencer marketing: some assume private posts in which followers have a pronounced interest in information. Others emphasise that followers are not stupid and know full well that people with millions of followers can live magnificently from the advertising revenue they generate via Instagram, for example.

In any case, the uncertainty has not contributed to the comfort among influencers, who are threatened with warnings and lawsuits by consumer protection associations.

In 2021, four decisions of the Federal Supreme Court (BGH) were issued that have shed some light – at least as far as tap tags on Instagram are concerned. We would like to briefly summarise what results from these decisions for you here.

Basically, unfair commercial acts are prohibited, § 3 (1) of the German Fair Competition Act (UWG). According to § 5a (6) UWG, a person acts unfairly who does not make the commercial purpose of a commercial act known, unless this is directly apparent from the circumstances, and the failure to make it known is likely to induce a consumer to make a commercial decision that he would not otherwise have made.

The commercial act

The central concept of UWG law is the “commercial act”. What does this mean? A commercial act is any conduct by a person in favour of an undertaking which is objectively related to the promotion of sales, the purchase of products or to a contract concerning them. This is very broad and can be difficult to judge – especially in the creative sector of the modern media world.

Whether this definition is fulfilled, for example, in the case of an influencer post about a new handbag, can be argued. The BGH assumes that influencers generally act in favour of the “own brand” (= they themselves as their “own company”). Private posts are also suitable for cultivating one’s own image and ingratiating oneself to potential collaboration partners. For this reason, some courts had previously ruled that virtually every influencer post is subject to advertising labelling. However, because this went too far for the Federal Supreme Court, it restricted this case law:

In answering the question of whether a post was made for the benefit of another company, it depends on the consideration received. This does not have to be in money, of course, and can also consist of fancy goods or other benefits. If there was none, a commercialact only exists if the content of the mail is “excessively promotional”. The issue here is that the post contains unnecessary “promotional excess”. This is the case, for example, with strong adulation.

Errors, confusions, misleading statements

If such a commercial act exists, an influencer is first subject to a labelling obligation. You can get out of this if the advertising is obvious to consumers. At first glance (and not only when reading the text of a post!) everyone must be able to recognise “Ah yes, here comes a packaged ad”. Consumers should not go unprepared into the “net” of hidden Instagram advertising.

If the advertising is not obvious, the business character of the post must be suitably marked. This is possible, for example, by clicking on the option “Paid partnership with …”.

Does it matter whether I am paid for the post or not?

Whether one receives payment or other consideration for it plays a decisive role. Until the pending amendment of § 5a UWG at the end of May 2022, the BGH has namely ruled that the regulations of the State Media Treaty (MStV) and the German Telemedia Act (TMG) (which require a consideration for their concept of advertising), which take precedence for online media, “block” the general UWG prohibition of surreptitious advertising. As of the end of May, this requirement is then also codified in § 5a UWG itself.

In January 2022, however, the Federal Supreme Court ruled that consideration in this sense can, for example, already lie in a product to be advertised and sent free of charge. Payment or other material or immaterial advantages are therefore not necessarily required.

The case law of the Federal Supreme Court has clarified a few things, but the details are inconsistent and leave questions unanswered. Influencers should therefore have posts cross-checked by a person with legal knowledge if in doubt. Agencies should also adopt a strictly enforced policy on what has to be labelled and how, and how liability is structured in the event of violations of the UWG by influencers. Because, as always, it depends on the individual case, we are happy to help you!