Posts must be marked as influencer advertising!

Influencer advertising on social platforms such as Instagram can generate substantial income. The central question in dispute remains whether and when 'advertising' on Instagram must be marked as such. The Regional Court (LG) Cologne now provides an answer to the question of whether consideration is always required for 'advertising'.

A competition association targeted an influencer on Instagram. The influencer was active in various areas such as fashion and lifestyle on her Instagram account. She was sometimes also active in exchange for payment.

In her Instagram profile, the influencer published photos of herself that were 'tagged' with various manufacturers. By 'tagging', the names of the manufacturers of the clothing items or accessories she was wearing were displayed when the image was clicked. If one then clicked on the displayed company name, there was a redirect to the Instagram page of the respectively marked manufacturer.

Subsequently, the competition association issued a cease and desist letter to the influencer. Specifically, the cease and desist letter concerned photos on which company profiles were linked ('tagged') for commercial purposes. The influencer then undertook to refrain from publishing posts on which productsfor commercial purposesare tagged in the image of the post without making the commercial purpose of the respective post clear. A contractual penalty provision for further breaches of the cease and desist agreement was also agreed.

A short time later, the competition association again asserted claims against the influencer. This time, however, it concerned such links to company profiles thatwere made without considerationoccurred. The influencer made clear that she had purchased the products visible in the photos herself. Only a dirndl and a handbag were sent to her unsolicited.

The dispute was finally heard at the LG Cologne.

Every post is influencer advertising

The LG Cologne (Urt. v. 21.07.2020, Az. 33 O 138/19) ruled that influencers must also mark such posts on Instagram as 'advertising' for which they receive no consideration from the companies linked by 'tags'.

The court stated that if the commercial purpose of a business act is not made apparent, abreach of competition lawoccurs, provided that the failure to make it apparent is suitable to induce a consumer to make a business decision that he or she would not otherwise have made.

Not only the sales of the linked companies would be promoted by the 'tagging'. The publication of the posts in question also promotes the influencer's own business. At least insofar as the influencer thereby presents herself to the 'tagged' and other companies as a potential advertising partner.

The failure to mark the posts as commercial is furthermore suitable to induce consumers to click on the tags. It is namely possible that consumers would refrain from clicking in the event of marking as 'advertising'.

Influencer advertising comparable to a product catalogue

The LG Cologne also rejected the argument that not every Instagram post has a commercial background. For with the tags, the influencer does not limit herself to merely communicating the manufacturers. Rather, 'tagging' constitutes advertising-effective product presentation comparable to a product catalogue.

As a result, it is not decisive whether fees were promised to the influencer for the posts with the company tags or not. A marking as 'advertising' must take place. It would, however, be open to the influencer, for example, in the case of non-payment of commercial posts, to mark them as 'own advertising', 'unpaid advertising' or similar.

Conclusion

A decision by the highest court oninfluencer advertising on Instagramis still pending. According to the view of the LG Cologne, influencer advertising is to be assumed in every post in which companies are 'tagged'. A marking as 'advertising' is, in this view, always mandatory, regardless of whether commercial interests are behind it or not.