Instagram: Preliminary Injunction Against Influencer for Covert Advertising

An increasing number of companies advertise on social media platforms such as Instagram with so-called influencers. However, disclosure requirements must be observed. For legal violations are frequently followed by cease-and-desist letters and damages claims. This is confirmed by a judgment of the Regional Court (LG) Hagen.

A fashion blogger published photos on Instagram showing her wearing fashion items, for example a watch or a handbag. The branded products were linked to the respective company's homepage. The blog post contained no indication with the word "Advertisement", "Advertising" or similar to indicate that it was advertising.

A competition association saw this as covert advertising and thus a violation of competition law, issued a cease-and-desist letter to the fashion blogger and subsequently applied for the issuance of a preliminary injunction. Such an injunction was indeed issued by the LG Hagen. The fashion blogger's objection was unsuccessful.

The Court's Decision

The LG Hagen confirmed byUrteil vom 13.09.2017 – Az. 23 O 30/17the preliminary injunction. The court affirmed that with the images posted online and their linking to the respective companies without any indication that it was advertising, there was a violation of competition law.

A failure to indicate the commercial purpose exists if the external appearance of thegeschäftlichen Handlungis designed in such a way that the consumer cannot clearly and unequivocally identify its commercial purpose. This was the case here, because from the external appearance it appeared merely to be a fashion blog where the fashion blogger was discussing her outfits with her followers. At first glance it was not apparent that the predominant purpose of these images was to advertise the products visible in the image.

Conclusion

If advertising by fashion bloggers on social media platforms is not sufficiently identified as advertising, there is unlawful covert advertising. The commercial purpose of a post on Instagram and the like must be clearly recognizable.