Influencers and their posts on Instagram: All advertising?

The Problem:

Currently, several lawsuits are pending against influencers on Instagram, i.e. against people who sometimes receive money from companies for naming, linking and/or recommending their goods, hotels, services, etc. in their profiles.

The question here is almost always: "Is every message that influencers publish on their profiles and in which goods, hotels, events, etc. are mentioned and possibly linked, advertising and must be marked as such? Or are only those recommendations and mentions to be marked as advertising for which the influencers receive money or other monetary benefits from the companies?

Decision of the Regional Court of Karlsruhe

The Karlsruhe Regional Court also had had to decide such a case: According to the decision pronounced on 21.03.2018 by the decision of the First Chamber for Commercial Matters of the Regional Court of Karlsruhe (Case No. 13 O 38/18 KfH), the influencer Pamela Reif (defendant) must label her advertising placed on Instagram as such. The court of a competition association whose members include publishing houses and advertising advertising agencies.

The defendant's Instagram posts, which were which were the subject of the dispute, each consisted of a photograph of themselves with accompanying text. with accompanying text. If one clicks on the photo, so-called tags appear, which contain the the name of the brand of the clothing or accessories worn by the defendant. worn by the defendant. By clicking on such a tag, one is taken to the Instagram account of the respective brand manufacturer. The posts are not marked as marked as advertising.

German competition law prohibits Section 5a para. 6 UWG prohibits commercial acts whose commercial purpose is not purpose is not disclosed, unless this purpose is directly evident from the circumstances circumstances and if the non-disclosure is likely to induce the consumer to take a consumer to take a commercial decision which he would not have taken otherwise. would not have made otherwise. With this standard, the legislator is transposing EU law.

The Karlsruhe Regional Court considers the the defendant's actions constitutes a breach of competition law. The defendant's posts arouse the interest in the articles of clothing worn, etc.

By enabling users to reach the manufacturer's to the manufacturer's website, the image and sales of the respective manufacturer are promoted. The fact that the defendant, according to its own the defendant primarily wants to avoid queries from followers ("Where did you get your dress?"). does not conflict with the commercial purpose pursued at the same time. contradict the business purpose pursued at the same time.

The (apparent) privacy of some posts and the fact that the posts and the fact that the defendant is not paid for all posts, do not change this. It is the essence of influencer advertising that the Influencers always work on their image and authenticity at the same time, promoting the appropriate brands and products, and "nurturing" his circle of followers. "who value his credibility and want to be part of "their" influencer's community. Influencer's community. In this respect, the defendant always promotes its own business activities through its posts. also promotes its own business activities. For companies are interested in are interested in advertising media that are as credible as possible.

Labelling as advertising is also not dispensable. In no case do all followers know the advertising character of the appearance of the advertising nature of the appearance of influencers; this applies in particular to the subscribers of the defendant, some of whom are very young.

The judgement is not final. The defendant may appeal to the Karlsruhe Higher Regional Court within one month of the appeal to the Karlsruhe Higher Regional Court.

Source: Press release of the Karlsruhe Regional Court

Our Comment on the decision and the general problem:

The Regional Court of Karlsruhe represents, at least according to the press release, that all posts by influencers with recommendations/instructions are to be as advertising, irrespective of whether the influencers receive money or comparable receive money or comparable benefits for these recommendations and references.

In another case before the Munich I Regional Court, a claim is made against Cathy Hummels. In this case with comparable facts, after announcements in the press, the court took the view at the oral hearing that posts only count as advertising if the influencer receives something in return for the post, such as money, a gift or an invitation.

It therefore remains exciting and it can be assumed that the Federal Supreme Court will have to deal with this issue, which is, however, also desirable for a clarification of the legal situation.

GoldbergUllrich Attorneys at Law 2019

Attorney at Law Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law