The Higher Regional Court of Frankfurt am Main has decided that influencers must mark links on Instagram to the account of the manufacturer of a presented product as advertis-ing, since the goods and/or services are presented in business dealings. A missing mark as advertisement constitutes an anticompetitive conduct, regardless of whether or not the influencer has received or expected something in return for the linking.
In the course of a preliminary injunction proceeding, a publishing company took action against an influencer who regularly published photos of herself with various products and services on her personalized Instagram account. Some of the products and services shown were linked to the Instagram accounts of the respective suppliers, but without identifying the post as being an advertisement. In at least two of her accompanying texts, which were always visible below the post, she thanked linked providers for inviting her to journeys.
According to the publisher, this product presentation constituted a prohibited editorial advertisement and was, therefore, unlawful. For this reason, the publisher initiated legal actions in front of the Regional Court Frankfurt am Main against the influencer to stop the infringing behavior - but without success.
The Regional Court Frankfurt am Main denied the existence of an unlawful behavior by the influencer under competition law. In the view of the deciding chamber, the post was not sufficient to induce consumers to make a business decision, since a link was only made to the Instagram pages of the suppliers and not to their shop pages. Furthermore, there was no commercial communication as the information was provided independently and without financial consideration.
In the following, the publisher successfully filed an appeal against this decision.
In contrary to the view of the Chamber of the Regional Court of Frankfurt am Main, the Senate of the Higher Regional Court of Frankfurt am Main was of the opinion, that the influencer acted unlawfully within the meaning of the German law against unfair competition (Gesetz gegen unlauteren Wettbewerb, UWG). According to the judges, her Instagram account constitutes a commercial act in which posts are intended to increase sales of the products presented and promote the image of the advertised supplier. However, the commercial purpose of the post was neither directly derived from the circumstances nor from a tag. Since the influencer appears as a private person who shares her life with others, she is not an advertising figure, but an influencer.
The Senate has considered the account to be commercial, regardless of a provided or expected return of a service for the individual post. Thus, the influencer uses her publicity to use her own reputation on Instagram to promote her own products and herself and to, thereby, generate income.
In the opinion of the Court, the nature of the posts makes it difficult for private users to determine whether the post is an advertisement or only a private view of the influencer. The posts are, therefore, likely to induce the consumer to engage in a commercial activity which he would not otherwise have undertaken. The important factor is that the followers are motivated to click on the links to the marked companies. The decision of the Higher Regional Court Frankfurt am Main is not subject to appeal.
The ongoing change of the activities of influencers from private to business, increase the obligations that have to be observed when posting and tagging certain contents in social media. In this context, the requirements to tag advertisement repeatedly led to legal difficulties and uncertainties. Since no supreme court decision exists that deals with the classification of influencer activities as advertising or as expression of a private opinion, the legal clarification of all questions arising must be based on the inconsistent jurisdiction of the courts of instance.
The now issued decision of the Higher Regional Court of Frankfurt am Main shows once more, that influencers should pay strict attention to the requirements regarding the marking of posts in social media appearances as advertisement in order to avoid legal proceedings. The fact that influencers publish advertising posts as well as private ones via their social media account is not always recognizable for the viewer/consumer. Therefore, the aim of the jurisdiction of the Higher Regional Court of Frankfurt am Main is to ensure that consumers are protected from hidden advertising and to enable them to make an informed purchase decision. Only if consumers knows whether the product recommendation is a private opinion or an advertisement, they are able to make a corresponding purchase decision.
Since the legal situation on this subject is still very inconsistent, it should always be determined whether a post to be published could already be classified as so-called influencer marketing.
More about this topic can be found in our overview of influencer marketing and law (in German).
Laura Katharina Kues
Ann Cathrin Müller