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The Association of Social Competition eV (VSW) sued the well-known influencers Cathy Hummels, Leonie Hanne and Luisa-Maxime Huss. He complained that the influencers were using tap tags, which contain links to company pages, to make illegal advertising in Instagram posts. The VSW took each of the three influencers to cease and desist from a flat-rate warning.
In the lower instance, both the Higher Regional Court (OLG) Hamburg in the case of Leonie Hanne and the Regional Court (LG) Munich I in the proceedings against Cathy Hummels saw no inadmissible advertising. This is different in the case of Huss, whose posting was classified as inadmissible advertising by the OLG Braunschweig. All three cases were now pending decision by the BGH.
How the lines between advertising and reality are blurring
A dream of many marketing managers is coming true: The Facebook subsidiary Instagram makes advertising easier than ever. Public figures such as soccer stars, models or even and especially influencers who have become known through social media: Instagram makes them (supposedly) approachable. They share photos and videos almost in real time and allow their viewers, the so-called followers, to participate in their (high-consumption) life.
The other side of the coin: the lines between advertising and reality are blurring. For young people in particular, the use of social media platforms, such as Instagram and TikTok, is an integral part of their everyday life. The followers can interact with their role models by sending likes, comments and emoticons. In this way, many followers develop a supposedly personal relationship with their idols; the inaccessibility seems to have been overcome. On this basis, it is easy for the influencers to encourage people to consume the products, which are often mentioned incidentally and supposedly by chance. Personal stories are skilfully mixed with advertising content.
How the legislature has opposed influencer marketing so far
This strategy of influencer marketing has so far been countered by the legislator mainly through Section 5a (6) of the Unfair Competition Act (UWG). According to this, the commercial purpose of a business act is to be made clear, if this does not result directly from the circumstances, and the disregard is suitable to induce the consumer to make a business decision that he would not otherwise have made.
The decisions of the BGH
The BGH ruled: The VSW is only entitled to an injunction according to Section 8, Paragraph 1, Clause 1 and Paragraph 3, No. 2, Section 3, Paragraph 1, and Section 5a, Paragraph 6 of the UWG with regard to the posting of Luisa-Maxime Huss. Huss had received something in return for promoting a raspberry jam, in which she linked the manufacturer’s Instagram profile. In the absence of identification of the commercial purpose, a violation of Section 5a (6) UWG is to be assumed.
Hummels and Hanne, on the other hand, received no consideration for the contradicting contributions. In this case, the publication of a contribution only represents a business act within the meaning of Section 5a (6) UWG, “if this contribution is exaggerated in terms of its overall impression, for example because without any critical distance it simply highlights the advantages of a product of this company in a way that praises the fact that the presentation goes beyond the scope of factual information “. Whether a contribution is exaggeratedly promotional or not requires a comprehensive assessment by the trial court BGH.
Consequences
A real guideline for influencers: inside, companies and social networks unfortunately does not seem to have provided the BGH with the three decisions; Media lawyers criticize the decisions as unclear and contradictory. Influencer Huss also complained to the German Press Agency that she would have liked clearer rules with less room for interpretation.
It remains to be seen whether and to what extent the legislature will provide more clarity in matters of influencer marketing. In the middle of next year, new regulations for advertising labeling will come into force.
Do you have any questions in the field of competition law? We would be happy to support you personally. Just talk to us.
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