Influencer Marketing: Subliminal Advertising through Tags?

Photo posts on Instagram must be marked as advertising if the tags embedded in the photo link to brand manufacturer pages. What influencers now need to observe.

What is Influencer Marketing?

Influencer marketing has been very popular for several years now in all sectors, both among brand manufacturers and users. Influencers play a crucial role in this. As a rule, these arebloggers or YouTuberswho specialise in certain areas and report on their experiences in their posts.

The advertising industry recognised this potential early on. As a rule, influencers are provided with products to test, about which they then report via their channels. This directly addresses the respective target audience. The more followers an influencer has, the more interesting they become for advertising companies.

A decisive advantage of influencer marketing is that users, usually teenagers, can identify better with the influencers. This is primarily due to the rather private overall presentation. Mostly photographs from private everyday life or videos from (children's) rooms are published. Seemingly banal situations become Instagram posts. It can easily happen that the #OOTD (outfit of the day) contains one or another brand manufacturer. Whether paid or not is not recognisable, usually in any case.

Subliminal Advertising on Instagram?

When are such Instagram posts subliminal advertising? A competition association wanted to know more and sued influencer Pamela Reif for an injunction. The subject of the action were three photo posts on Instagram. So-called tap tags, i.e. clickable tags, were integrated into the images. The tap tags only become visible when you click or tap on the photo. Subsequently, you can tap on the labels and, depending on the link, will also be linked to the respective manufacturer's account. This was indeed the case with the disputed three posts. No indication that this was advertising was contained in the posts.

The claimantcompetition associationwas of the opinion that the influencer was pretending to be acting privately, while in reality it was advertising subject to disclosure requirements.

Decision of the Regional Court (LG) Karlsruhe: Instagram Tap Tags are Subliminal Advertising

Byjudgment of 21.03.2019 (AZ 13 O 38/18 KfH)the Regional Court (LG) Karlsruhe confirmed the competition association's view.

The posts constituted prohibited subliminal advertising which the influencer must cease. The Instagram presence of the influencer constituted a commercial activity. The disputed posts serve to promote the businesses of third parties. It was advertising intended to increase the sales of the presented products and to promote the image of the advertised manufacturer and its brand name.

Interest in the brand and the products is awakened by the influencer by presenting the products on her own body or in connection with her person. The closer familiarisation with the manufacturer company and product sales are facilitated by the fact that the interested party, when activating the linked tag, is directed to the respective Instagram account of the manufacturer. The fact that the influencer wishes to avoid questions from followers (where did you get your dress?) does not preclude the commercial purpose being pursued at the same time.

The emphasised private character of the posted photographs and the accompanying story does not change the existence of a commercial activity. On the contrary: it is precisely the nature of influencer advertising that the influencer is always working on his or her image and authenticity at the same time.

The influencer also promotes her own business through the posts. As an influencer, she generates income by marketing products while still appearing authentic. Companies are interested in advertising carried by credible advertising media.

The particular marking of the advertising was not dispensable here, since the commercial purpose did not emerge directly from the circumstances. In the case of Instagram posts, this means that when merely viewing the image, it must "stand out" that it is advertising. However, this was not the case here.

Conclusion

The judgment of the Regional Court (LG) Karlsruhe now imposes further marking obligations on influencers foradvertisingon Instagram. Already theHigher Regional Court (OLG) Cellehad addressed the scope of the marking requirement for paid advertising. But the unpaid linking to the respective manufacturer also promotes its sales and also the business of the influencer himself. This is therefore undoubtedly advertising, which must be marked as such. The judgment is not yet final, so it remains to be seen whether Pamela Reif will take action against it.