An influencer is not permitted to post images of herself on her Instagram profile in a commercial context, where she presents goods and links to the manufacturers' accounts, without explicitly marking this as advertising.
This was decided on May 13, 2020, by the 2nd Civil Senate of the Higher Regional Court of Braunschweig (2 U 78/19).
When does it constitute advertising?
The influencer was active on the social media platform Instagram, regularly publishing images and short video sequences related to sports exercises, as well as fitness and nutrition tips. When users clicked on the images, the names and brands of the manufacturers of the clothing worn by the defendant appeared. A subsequent click then directed users to the manufacturers' Instagram profiles.
According to the 2nd Civil Senate, this constituted inadmissible advertising. By posting the images and linking them to the names and accounts of the manufacturers, the influencer was acting for commercial purposes. She operated the Instagram account not merely for private use, but also for brand building, image cultivation, and the development of her own brand and company. It was not solely decisive that she had not received material compensation for specific advertising. The expectation of attracting the interest of third-party companies in influencer marketing and thereby generating revenue was deemed sufficient. After all, the defendant herself identified as an influencer. Influencers are typically well-known and popular individuals who are compensated for being featured with a specific product. Furthermore, the fact that her Instagram posts offered no editorial reason for the images and manufacturer mentions also indicated commercial activity.
Must advertising on Instagram be clearly identifiable?
Because the influencer had not disclosed the commercial purpose of her actions, the advertising was deemed inadmissible. Consumers could also not have directly inferred from the circumstances that it was advertising. According to the 2nd Civil Senate, it is precisely the nature of an influencer post that a seemingly private and objective recommendation is made, to which followers would attach greater importance than to clearly marked advertising.
The judgment is not yet legally binding (as of May 29, 2020).
Source: Press release of the HIGHER REGIONAL COURT OF BRAUNSCHWEIG of May 29, 2020
