Why influencers must label their posts as advertising

Fashion and lifestyle blogging is a very lucrative business. Many influencers/bloggers run blogs full-time, some have a high number of followers and make six-figure sales. The latter are mainly paid by companies for which the influencers/bloggers advertise. The decisive factor, however, is whether the influencers / bloggers also have to label their posts as advertising.

When must a post / contribution be marked as advertising?

The plaintiff, Verband Sozialer Wettbewerb e.V., issued a warning to a well-known influencer/fashion blogger for three posts on Instagram. In all three posts, the defendant referred to products of various manufacturers in the form of embedded "tags". These posts were not marked as advertising. Following the plaintiff's action, both the Regional Court of Cologne and the Higher Regional Court of Cologne ruled that the defendant should have labelled the posts and ordered the defendant to cease and desist and also to pay a contractual penalty.

Are influencers committing a business act?

The OLG Cologne found that the posts of the defendant influencer/blogger are to be classified as a commercial act according to §§ 2, No.2. 3 para. 1 UWG. A commercial act exists if one's own conduct is related to the promotion of one's own or another's sales.

In the past, the defendant influencer/blogger had received concrete consideration from the manufacturers of the advertised products. Moreover, it was sufficient for the assumption of a commercial act because there was in any case circumstantial evidence of the promotion of the manufacturers' sales. According to previous case law, the tags embedded in the posts, i.e. links to the manufacturer's pages, were sufficient for this.

The mixing of editorial content and advertising did not lead to a different result. Such "mixing" is precisely what the UWG seeks to prevent.

Why do influencers have to mark posts / contributions as advertising?

The influencer/blogger had to label her post as advertising according to Section 5a (6) UWG, because not disclosing the commercial purpose could otherwise cause the consumer to make a wrong business decision.

Do influencers have to inform their followers which Instagram posts contain advertising?

According to the Cologne Higher Regional Court, even Instagram profiles with a high reach do not necessarily have to be commercially motivated. In this respect, users do not necessarily have to assume a commercial motivation. Each case must be assessed individually.

The defendant influencer/blogger also suffered the following fate: she emphasised that she attached importance to naturalness and honesty in her posts and also dealt with social issues in her posts. The Cologne Higher Regional Court stated that this only deceived users even more. Users would develop an attitude with an "honest" influencer/blogger that they would not develop with a deliberately "advertising-financed" influencer/blogger.

Which posts / contributions do not have to be marked as advertising?

According to the OLG Cologne, posts do not have to be labelled if the blogger has not received any money from the manufacturer, the manufacturer has not granted an indirect advantage and there is no one-sided and excessive highlighting of the objectively favoured manufacturer.

The blogger was unable to provide this evidence.

How do influencers / bloggers prevent warnings?

First, some good news: The Higher Regional Court of Cologne has allowed an appeal to the Federal Supreme Court. It has not yet been clarified by the highest court under which conditions commercial motivation exists in influencer advertising pursuant to Section 5a (6) UWG. Hopefully, the Federal Supreme Court will make clear guidelines for influencer advertising.

Until clarification by the Federal Supreme Court, Section 5a (6) UWG means a balancing act for you. For the commercial motivation, the courts of instance work predominantly with circumstantial evidence. The circumstantial evidence of the Higher Regional Court of Cologne was:

- no direct payment by the manufacturer.

- no indirect benefit from the manufacturer (e.g. clothing, accessories).

- no one-sided and excessive emphasis on the manufacturer.

According to the legal opinion of the Cologne Higher Regional Court, as soon as only one of the aforementioned criteria is fulfilled, advertising subject to labelling is present.

Source: OLG Cologne, judgement of 19.02.2021, ref. no. 6 U 103/20

Previous instance: Cologne Regional Court, judgment of 21.07.2020, ref. no. 33 O 138/19

We help you to put your influencer campaign on a legally secure footing, both in terms of competition law and contractual law. We will be happy to draw up suitable influencer contracts for you.

GoldbergUllrich Lawyers 2021

Julius Oberste-Dommes LL.M. (Information Law)

Lawyer and

Specialist lawyer for information technology law