A successful influencer must mark special posts about her outfits as advertising on the Instagram platform, even if she has not concluded a sponsorship agreement with the companies mentioned. This was decided by the Cologne Higher Regional Court (OLG) and therewith also in the second instance a corresponding lawsuit by the Association of Social Competition eV was upheld.
According to the court, influencer makes six-figure sales
The defendant comments as a blogger on the Internet on topics from the fields of fashion, lifestyle and sexuality. She has almost a million followers on Instagram and more than 600,000 fans have subscribed to her channel on Youtube.
Several photos were marked on the influencer’s Instagram account in such a way that the name of the manufacturer of the clothing or accessories she wore was displayed, provided that the picture was clicked. If you then clicked on the names of the companies, they were redirected to their Instagram pages. The plaintiff criticized three photos.
The influencer had not signed an advertising contract
One of the posts shows the defendant in the forest. She asks the viewer which outfit to choose. On the second post you can see the influencer styled, the names appearing reflect the photographer, the stylist, a cosmetics company and a lifestyle magazine from which the defendant received a price. In the third picture, the defendant is posing with a dirndl.
The plaintiff was of the opinion that the contributions should be marked as advertising because the photos had a commercial purpose. The blogger considered the posts to be admissible without labeling because there were no advertising contracts with the linked companies. She set the tags for editorial reasons and bought and paid for the clothes herself.
Cologne courts agree with the plaintiff association
The Cologne Regional Court had already decided: “Even if there are no advertising contracts between the influencer and the companies whose clothing and accessories she wears, it is a business act by the influencer that must be labeled accordingly.” The defendant appealed . In vain, as the Higher Regional Court decided.
The blogger had expressed the suspicion that the suing association, which is taking action against unfair competition, was only warning various influencers on the basis of its own financial interests. According to the court, however, this is not very plausible, as “associations are generally only allowed to demand flat-rate fees for warnings”. The OLG allowed a possible appeal to the Federal Court of Justice.
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