Which posts do influencers have to mark as advertising?

An influencer is not allowed to post pictures of herself presenting goods and linking to the accounts of the manufacturers on her Instagram page in the course of business without making this recognisable as advertising.

This was decided by the 2nd Civil Senate of the Higher Regional Court of Braunschweig on 13 May 2020 (2 U 78/19).

At what point is it advertising ?

The influencer was active on the social media platform Instagram, where she regularly published pictures and short video sequences on sports exercises as well as fitness and nutrition tips. When users clicked on the pictures, the names and brands of the manufacturers of the clothes worn by the defendant appeared. With a further click, the users were then directed to the Instagram presences of the manufacturers.

According to the 2nd Civil Senate, this was illegal advertising. By posting the pictures and linking them to the names and accounts of the manufacturers, the influencer was acting for commercial purposes. She did not operate the Instagram account privately, but also for the purpose of image cultivation and to build up her own brand and company. The fact that she did not receive any material consideration for certain advertising was not the only decisive factor. The expectation to arouse the interest of third-party companies in influencer marketing and to generate sales in this way was sufficient. After all, the defendant described herself as an influencer. As a rule, these were well-known and popular people who were paid to be depicted with a certain product. The fact that her posts on Instagram did not offer any editorial reason for the pictures and the naming of the manufacturer also spoke in favour of commercial action.

Does advertising on Instagram have to be clearly recognisable?

Because the influencer had not made the commercial purpose of her actions clear, the advertising was inadmissible. Consumers could not have immediately recognised from the circumstances that it was advertising. According to the 2nd Civil Senate, it is precisely in the nature of an influencer's post that an apparently private and objective recommendation is made, to which the followers would attach greater importance than a labelled advertisement.

The judgement is not yet final (as of 29.05.2020).

Source: Press release of the BRAUNSCHWEIG SUPREME COURT of 29 May 2020