BGH: Product reference by influencer not always advertising

One of the biggest bone of contention in the growing influencer industry is surreptitious advertising. When must men and women make it known that they are promoting products and manufacturers? The Federal Court of Justice has now dealt with questions about this and found a guideline.

When influencers such as Cathy Hummels post photos on social networks and refer to manufacturers of a product without an advertising note, this does not count as advertising under certain conditions.

For the own company then not, if the people are known as entrepreneurs. Posts in social media are suitable for influencers to increase awareness and advertising value and thus promote their own company, ruled the Federal Supreme Court (BGH). But even if they refer to other companies, it depends on the form in which they do so, whether they receive something in return and how promotional the post is.

“Tap tags” on Instagram are not surreptitious advertising

Specifically, Karlsruhe was about lawsuits against the Upper Bavarian Hummels, the Hamburg fashion influencer Leonie Hanne and the Göttingen fitness influencer Luisa-Maxime Huss. The Association of Social Competition had accused them of unlawful surreptitious advertising and demanded injunctive relief and the costs of the warning. The proceedings are of fundamental importance for the industry. The competition association has issued warnings to numerous influencers for surreptitious advertising. The highest civil judges of Germany gave but now largely the three Influencerinnen right (I ZR 126/20, I ZR 90/20, I ZR 125/20).

BGH ruling on advertising on Instagram
Commitment to the product or advertising? Influencer Luisa-Maxime Huss also gets a little more leeway as a result of the BGH ruling. Photo: dpa picture alliance

Hummels, for example, says she marks posts for which she is paid by the linked companies with the words “paid partnership with …”. If there is no consideration, this is not necessary in the view of the first civil senate. Unless a direct link to the company’s website is set.

So-called tap tags in photos on Instagram, which redirect users to the profiles of manufacturers or brands. In the view of the BGH, these alone do not constitute “advertising surplus.” However, details matter. A commercial act in favor of another company is present if a post is excessively promotional “according to its overall impression”: “For example, because it solely praises the advantages of a product of this company without any critical distance in such a way that the presentation leaves the framework of factually prompted information.”

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Rules leave much room for interpretation

Influencer Huss told Deutsche Presse-Agentur that she would have liked to see clearer rules. “This leaves a lot of room for interpretation.” Even if you’re totally convinced by a product, she said, you have to think carefully about how you phrase that. As a precaution, labeling every such post as an advertisement is not a solution, she says: “It looks like a continuous advertising loop, which I’m not.”

The fact that it continues to depend on the individual case is not unusual in fair trading law, said lawyer Simon Apel from the law firm SZA to dpa. “There are rather rarely crystal clear matters.” Thus, two divergent court decisions on similar cases could both be well-reasoned. The lower courts in the three BGH cases had ruled differently. Apel is not involved here; he advises companies on legal aspects of influencer marketing.

Apel spoke of an “increase in legal certainty.” Above all, because the BGH has clarified that influencers do not have to identify posts in favor of their own company as advertising if this commercial purpose already follows from the circumstances. If this is not clear, however, a gray area remains. This is the case, for example, with influencers at the beginning of their career or with employees who advertise for their employer. It is also questionable, for example, whether the salary of the “influencer” employee is a consideration of the advertised employer in the sense of the BGH rulings, he said.

Forwarding to manufacturer profile also possible via tap tag

The industry association Bitkom also sees “clarity for all those who are part of this new advertising economy.” Also for users of networks such as Instagram, Facebook or TikTok, who would get more transparency. “Posts can appear to be advertising, but not everything that social media stars post is actually advertising in the legal sense,” explained Chief Executive Bernhard Rohleder.

Insofar as the BGH assumes that a reference to the manufacturer of a product in a tap tag – without consideration – is not yet sufficient to classify a post as excessively promotional and thus subject to labeling requirements, this only partially convinces Attorney Apel, however: “This would be plausible if the tap tag only mentions the name of the product or manufacturer, but does not forward to the Instagram profile of the manufacturer,” he explained. “However, if such a forwarding takes place, it is not apparent where the difference should lie with a link to the manufacturer’s website, which the BGH generally considers to be promotional.”

Martin Gerecke, specialist lawyer for copyright and media law at the commercial law firm CMS Germany also shared: “The BGH does not provide a real guideline for all the influencers, companies and social media networks.” The decisions would not reassure the industry. “Already, contradictory interpretations of the rulings can be found on the web.” The reasons for the verdicts remain to be seen.

“In the end, only the draft law on advertising labeling will bring clarity,” Gerecke said. The law is expected to come into force next year. “Its statement is clearer than the decisions of the BGH: Only if the influencer has gained a pecuniary advantage – of whatever kind – is his posting to be regarded as advertising subject to labeling.” According to Apel’s assessment, however, even the new legal regulation will not enable a generally valid delimitation. Therefore, the rulings of the BGH would remain relevant beyond that.

With material from dpa