#ad on Instagram is not enough

#ad at any rate does not suffice to mark advertising on Instagram or comparable media if it is located at the end of a post in the second position of a total of six hashtags.

An influencer with 1.3 million followers on Instagram had advertised for an online offer by the drugstore chain Rossmann. He had indeed pointed to the paid advertising with #ad. However, the marking was only made at the end of the post, namely in the second position of a total of six hashtags.

A competition association considered this marking to be insufficient and demanded that the drugstore chain cease and desist. Rightly so, as the OLG Celle confirmed.

Court decision – #ad in second position is not sufficient

By judgment of 08.06.2017 (AZ 13 U 53/17), the OLG Celle ordered the drugstore chain to cease and desist.

The court had no doubt that the Instagram post was advertising, in particular because the influencer was remunerated for the post. Contrary to the view of the first instance, the commercial purpose of the post had not been made sufficiently clear. The commercial purpose must be apparent at first glance. The use of the hashtag #ad, at least in the form in which it was made in the present case, was not sufficient to mark the post as advertising.

The court left open whether the use of the hashtag #ad is fundamentally suitable to mark a post as advertising. However, a sufficient marking was lacking in the present case because the hashtag was not clearly recognisable at first glance.

Conclusion

Whether Instagram, Youtube or Snapchat, influencers are no longer unthinkable in today's media industry. Companies also use this phenomenon for advertising purposes. Advertising must, however, here also be marked without exception clearly and recognisably at first glance. Whether the marking with #ad as such suffices, the court left open. In this respect, a more unequivocal marking is to be recommended.