Influencers live from conveying as authentic a picture of themselves as possible and “selling” a certain lifestyle to their followers. As a rule, the influencers present their supposed everyday life. Branded products, restaurants, hotels or the like are often mentioned within the articles. The boundaries between private expressions of opinion and commercial, promotional content are blurring. For the mostly young, partly underage audience, it is not clear whether it is an honest recommendation of their own idol or a paid product placement, i.e. advertising. If the influencer has a cooperation with the advertised company, contributions must be clearly marked as advertising. However, the question arises again and again as to how contributions should be treated for which the influencers receive no direct consideration and there is no advertising deal. The most common question that we get from our clients is therefore: Do I have to mark my contributions as advertising even in the case of self-paid products? The question sounds simple, but the answer isn’t.
The core legal problem of labeling requirements in influencer marketing has existed for years and has still not been completely resolved by the courts in Germany.
I. Legal basis
The legal basis for influencer marketing is determined by the Act against Unfair Competition (UWG), the Telemedia Act (TMG) and the State Media Treaty (MStV). However, the TMG and UWG in particular come from a time when there was no influencer marketing, so that an interpretation of the currently applicable standards has to take place. The interpretation is currently inconsistent by the German courts. So far, several higher regional courts have ruled on the problem of the (non-) labeling of contributions as advertising. However, the decisions are partly contrary, so that there is still legal uncertainty with regard to the labeling requirements. The key question of when influencers must expressly mark content as advertising and when the limit to camouflaged advertising (so-called surreptitious advertising) is exceeded, can therefore still not be answered clearly.
Pursuant to Section 5a (6) of the UWG, a person is acting unfairly who does not make the commercial purpose of a commercial act identifiable, provided that this does not result directly from the circumstances and the non-identification is suitable to induce the consumer to make a business decision that he would otherwise would not have met. The term “commercial act” is legally defined by the legislator in Section 2 (1) No. 1 UWG. A business act is any behavior of a person for the benefit of one’s own company or that of a third party, during or after a business transaction that is objectively related to the promotion of the sale or purchase of goods or services or to the conclusion or performance of a contract for goods or services .
According to the wording of Section 5a (6) UWG, no cooperation (contractual relationship) between influencer and company is required. Therefore, in the case of posts for which there is no cooperation, it is generally necessary to check whether the specific posting represents a “business act” with a “commercial purpose”. If this is the case, a posting would have to be marked as advertising if the commercial purpose “does not result directly from the circumstances” and “making it unrecognizable is likely to induce the consumer to make a business decision that he would not otherwise have made “.
In order to answer the question of whether a post should be labeled as advertising, a distinction must therefore be made between private posts and business activities. In practice, however, this distinction is often extremely difficult to make, especially in the case of posts – as described at the beginning – in which the influencers present products they have bought themselves and link the companies via so-called tap tags. It is often not immediately recognizable: the influencers act purely privately, by presenting their preferred products to their followers, or should (also) their own market value and image be increased and, at best, the manufacturers of the products should be made aware of possible cooperations through the links (keyword self-promotion)? Depending on which court you ask in Germany, there is a different assessment in such cases with regard to the existence of a commercial act.
II. Government draft of a law to strengthen consumer protection in competition and trade law
The industry is currently putting hope in a draft law initiated by the Federal Ministry of Justice and Consumer Protection (BMJV). It is a draft law to strengthen consumer protection in competition and trade law. In a press release from January 20, 2021 Federal Minister Christine Lambrecht promised:
“Influencers and bloggers are finally getting more legal certainty. In the future it is clear: You only have to mark a post as advertising if there is something in return. And consumers also know where they stand: They can better assess how a recommendation came about – and whether they want to trust it. “
The aim of the change in the law should therefore be a secure legal framework for the actions of influencers when they recommend goods and services without benefiting from them in the form of payment or a similar consideration.
The draft provides for a specific change to §§ 2 No. 2 and 5a UWG. The definition of a “business act” is to be supplemented in Section 2 No. 2 UWG-E to the effect that it no longer has to be only in an objective, but also in a direct connection with a sales promotion. In addition, Section 5a, Paragraph 4, Clause 2 of the UWG-E is intended to clarify that an act in favor of a third-party entrepreneur should expressly not be assumed to have a commercial purpose if no remuneration or similar consideration is promised for this. According to the current government draft – if you follow the recitals – the influencers would have to prove the lack of payment or a similar consideration.
If the law is approved by the Bundesrat and Bundestag, it should come into force on May 28, 2022.
However, the proposed law is not without controversy. In particular, the Federation of German Consumer Organizations, the state media authorities and the German Lawyers’ Association are critical of the draft law. The current draft law does not seem to be able to solve the core problem either. The question of when there is a “similar consideration” and when a post must therefore be labeled as advertising will not be easy to answer even with the new law. With regard to cases of so-called self-promotion, influencers should not enjoy more legal security even under the current draft law than under the current legal situation. In the recitals to § 5a UWG-E it says in concrete terms: “The question of whether there is an act in favor of one’s own company does not depend solely on the receipt of a fee, since self-promotion is also generally required to be labeled if it is not otherwise recognizable. In the case of recommendations made by influencers free of charge, it must therefore be taken into account in accordance with the amendment in Section 2 Paragraph 1 Number 2 whether there is a direct connection to the sale of products and services the specific contribution represents a business act or not.
The Cologne Higher Regional Court goes even further in its current decision of February 19, 2021 (Az. 6 U 103/20) by questioning the conformity of the draft law with EU Directive 2005/29 / EC. According to the applicable EU directive, evidence of commercial intent can also be inferred from circumstances other than the payment of a direct fee (cf. Art. 7 (2) of Directive 2005/29 / EC).
III. Proceedings before the Federal Court of Justice
The industry is therefore likely to place more hope of future legal certainty in the proceedings pending at the Federal Court of Justice on labeling obligations in influencer marketing. The Federal Court of Justice will, among other things, deal with the question of whether and when contributions represent business activities and must be marked as advertising in a case concerning Cathy Hummels (BGH Az. I ZR 126/20) (lower instance: Higher Regional Court of Munich, judgment of 25. June 2020, Az. 29 U 2333/19).
In addition, the Hamburg Higher Regional Court (judgment of July 2nd, 2020, Az. 15 U 142/19 – BGH Az. I ZR 125/20), the Karlsruhe Higher Regional Court (judgment of September 9, 2020, Az. 6 U 38 / 19 – BGH Az .: I ZR 163/20), the Braunschweig Higher Regional Court (judgment of May 13, 2020, Az. 2 U 78/19 – BGH I ZR 90/20), and the Cologne Higher Regional Court (judgment of February 19 2021, Az. 6 U 103/20) admitted the revision in their judgments.
With the press release 101/2021, the Federal Court of Justice announced on May 28th, 2021 that it would hear orally on July 29th, 2021 in matters I ZR 90/20, I ZR 125/20 and I ZR 126/20.
A decision by the Federal Court of Justice regarding Cathy Hummels and two other influencers can therefore be expected very soon. As a result, the Federal Court of Justice will probably make one of the most important decisions in influencer marketing.
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