DE: Obligation to label Instagram advertisements by influencers

Oct 6, 2021 Benn-Ibler Rechtsanwälte

The German Federal Supreme Court (Bundesgerichtshof, BGH) ruled in three proceedings on the question of the extent to which influencers are obliged to label advertising in their Instagram posts when using so-called "Tap Tags".

The action was brought by an association whose tasks include both protection of the commercial interests of its members and the prosecution of possible violations of fairness. The defendants are social media influencers who publish pictures with short accompanying texts on their profiles on the social media platform Instagram. Individual pictures were provided with so-called "Tap Tags". These appear as small information boxes when the products depicted in the pictures are clicked on. They name the manufacturer and when clicked, the user is forwarded to the respective profile of the company. For these posts, the influencers received a service in return. The plaintiff considers this to be unlawful surreptitious advertising and applies for an injunction.

According to Section 5a para 6 of the Act Against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb, UWG), anyone who does not make the commercial purpose of a business act clear, unless it is immediately apparent from the circumstances, is acting unfairly.

Influencers who offer goods through a social medium are running a business. Post publications then represent business acts in favour of their own advertised business. Promotional posts in favour of a third party company are only considered business acts - apart from cases of remuneration - insofar as the overall impression of the post is excessively promotional. For example, if only the advantages of the product are mentioned with no downsides. In this case, the posts in dispute are to be regarded as business-like acts, since payment was received.

The commercial purpose of the third-party advertising was also not made sufficiently clear. The reference to the commercial purpose of a business transaction must be made so clearly that it stands out beyond doubt from the point of view of an averagely informed and reasonable consumer. A notice with "*Advertising" appearing in the text part below the picture is not sufficient to identify the commercial purpose of a "Tap Tag" as third-party advertising. The reference point of the advertising reference is unclear for the consumer.

BGH I ZR 90/20, I ZR 125/20, I ZR 126/20 (09.09.2021)