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News on influencer marketing

Background
Influencer marketing is now among the most common forms of advertising for many companies. Instagram and other social networks offer the “opinion makers” an ideal platform for (self-)presentation and effective advertising of products. According to a current survey of the German Association for the Digital Economy (Bundesverband Digitale Wirtschaft e.V.) dated 10 November 2018, 59% of the companies surveyed use influencer marketing. However, the use of this advertising format established within the last years is associated with legal risks – both for the advertising companies and for the influencers themselves. Already in 2017, the Higher Regional Court of Celle dealt with the question of whether an influencer campaign of the drugstore chain Rossmann was to be classified as surreptitious advertising (ruling dated 8 June 2017, 13 U 53/17). Social media contributions with an advertising background must be identified as such (§ 5a UWG (Gesetz gegen den unlauteren Wettbewerb [Anti-Competition Law]), § 6 TMG (Telemediengesetz [Telemedia Act]), § 58 RStV (Rundfunkstaatsvertrag [Broadcasting Treaty])). The commercial purpose must be visible at first glance.

Labelling obligation
The decisive question is: When is a posting of an influencer advertising? If the influencer receives a consideration in the form of fees or products for a contribution, it is assumed there is a labelling obligation. However, all other constellations are difficult to assess. After the recent increase in rulings against influencers and the Regional Court Berlin (ruling dated 24 May 2018, 52 O 101/18) made a distinction that was not detailed further between influencers with fewer or more than 50,000 followers, many influencers, as a precaution, identified every contribution as “advertising” – even if there were obviously no commercial purposes intended by the post. The Berlin Court of Appeal shed new light on it with its appeal ruling dated 8 January 2019 (5 U 83/18). Accordingly, contributions from influencers with links or tags to product providers are not generally considered to be advertising requiring labelling. Rather, it depends on the specific content and the special circumstances of the individual case. A general assumption that entrepreneurial influencers who present products or brands in their posts fundamentally carry out commercial communication is therefore not justified.

Consequences for the practice
If there is no consideration for a posting with links or tags to product providers and the contribution is of an editorial nature, it is generally not subject to mandatory labelling. The references to the manufacturers of the depicted products often serve to inform the interests of the followers. This is comparable with photographs in a fashion magazine. Companies who work with influencers, however, must pay special attention to the design of their contracts. The obligation to clearly label the posts as “advertising” or “display” is therefore an indispensable component of the contract. The hash tag “#ad” is not sufficient. In addition, any rights of third parties (e.g. a photographer or other depicted persons) should be observed. Also the inclusion of an obligation not to be active at the same time with the published contributions of direct competitors is recommended.

Author: Sarah C. Schlösser