GER: Labelling of advertising by influencers in social media
Paid posts by influencers in social media, such as Instagram, Facebook, Twitter, YouTube etc. must be labelled as advertising, otherwise not only the influencer but also the advertising company can be hold liable for concealing the commercial purpose of the post (surreptitious advertising). This can lead to claims for restraining the influencer and/or the advertising company from publishing the post as was done, possible damage claims and also to the imposition of fines.
Influencer marketing is booming due to its supposed personal character, in which products are recommended. This is also the reason why advertising for products and product placements is often not labelled accordingly. Advertisers have concerns that, if appropriately labelled, their products may be less likely to sell.
However, if there is no corresponding labelling, this can also have unpleasant legal consequences for the advertising company, as decided by the OLG Celle in its decision of 08.06.2017, court file 13 U 53/17.
Pursuant to Section 5a (6) of the German Unfair Competition Act (UWG), the commercial purpose of influencer marketing must not be disguised. Since the influencer receives a compensation for his post from the advertising company (money, free products, discounts, vouchers, etc.), the influencer acts in the course of trade, regardless of whether the post is placed on an alleged private account of a social media provider. As a result, not only the influencer but also the advertising company behind it must comply with the labelling provisions of the German Unfair Competition Act (UWG), the provisions of the German Telemedia Act (TMG) and, in addition, in the case of video, the provisions of the German Broadcasting Treaty (RStV).
This means that the advertisement must be labelled as such and a corresponding notice must be so clear that from the point of view of an average recipient of the advertisement, there is no doubt as to the commercial purpose of the post.
In other words: The intended consumer must be able to see at first glance that this is advertising.
The Direktorenkonferenz der Landesmedienanstalten (Directors‘ Conference of the State Media Authorities) recommends labelling as #Werbung or #Anzeige. Probably on the basis of the case-law of the OLG Celle, it currently advises against labelling as #ad.
However, it should be noted that the OLG Celle has not denied a possibility of labelling via #ad. However, the Court pointed out that the nature of the labelling must be seen in conjunction with the intended consumer and that it must therefore be ensured that the circle of consumers in question indeed know that the abbreviation “ad” stands for the English word advertisement and means Werbung.
However, the indication must also be visible at first glance. Corresponding references at the end of a continuous text are therefore insufficient. Instead, the reference should already appear in the heading. Here too, however, it is important to ensure that the reference does not drown in a flood of # and is“hidden“ in the middle of a large number of #. It must also be ensured that the reference can be retrieved from all kind of devices, including mobile devices and the reference must be visible even if the post is incorporated into a third party’s website.
However, since the advertising company has only limited influence on how the influencer actually labels the advertising in the social media, the advertising company should give consideration to specifying the type of labelling of the advertising and the posts in the contract with the influencer or advertising agency in order to determine whether an exemption from liability in the internal relationship is sensible and feasible in the event of a breach of the contractually stipulated obligation to label.
Contact person: Vanessa Lichter, German Attorney at Law