When do influencers have to mark their posts as advertising? The BGH is examining this on the basis of three cases, including Cathy Hummels. The industry and also lawyers hope for clarity.
They post photos and videos on Instagram of themselves at home, while traveling, or of fashion and fitness trends – and hints about which medication they swear by or where they bought the chic bag. Is that still information or is it already surreptitious advertising?
The Federal Court of Justice (BGH) is examining this on Thursday (9:00 a.m.) on the basis of three influencers; including Cathy Hummels, the wife of soccer star Mats Hummels. They were sued by the Association of Social Competition (I ZR 126/20, I ZR 90/20, I ZR 125/20). A judgment is no longer expected on Thursday.
What is it about?
Cathy Hummels (I ZR 126/20) and two other influencers from Hamburg and Göttingen regularly publish posts on Instagram with so-called tap tags that refer to companies and brands. One click – and you are directly on the product’s Instagram profile. For the competition association this is inadmissible surreptitious advertising; he demands omission and warning costs.
What is the problem?
Advertising must be labeled. But what is commercial and what is private? It is difficult to differentiate between influencers. According to the media law firm Wilde-Beuger-Solmecke, postings are surreptitious advertising if editorial texts and advertising do not clearly stand out. Even without consideration, you could benefit from a posting – for example through a future company cooperation.
Why does the BGH have to deal with it?
So far, courts have judged very differently. A fundamental decision by the highest court is still pending.
How did the lower courts decide?
Cathy Hummels (over 600,000 Instagram subscribers) was successful in two instances. The posts are not “unfair in terms of competition law”, so the Higher Regional Court (OLG) Munich. It’s only about products for which Hummels has not received anything in return, including a blue fabric elephant from her son Ludwig. She labels other contributions as “paid partnerships”.
A fashion influencer from Hamburg (3.6 million subscribers) was defeated by the regional court, but got the OLG right: The tap tags are not anti-competitive because the commercial purpose is clear. It is also not clear whether the influencer has received anything in return for her.
A woman from Göttingen (150,000 subscribers) who posts fitness and nutrition tips lost twice. The lack of identification could lead consumers to business decisions that they would not otherwise make, according to the OLG. The influencer got into trouble because of a raspberry jam, among other things.
What are the consequences of the Karlsruhe ruling?
It is questionable whether celebrities will be able to recommend products and services in the future without risking warnings. It is important to mark posts as advertising when money has flowed or there has been consideration, says Cathy Hummels. “But it is just as important that you can still develop your own free opinion.” It’s not just about the three women: The association has warned numerous influencers for surreptitious advertising. Pamela Reif (8 million subscribers), who advertises fitness products, among other things, is also hoping for the BGH: She suffered a defeat at the Karlsruhe Higher Regional Court.
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