Duty to mark Instagram advertising

Influencers must regularly mark their Instagram advertising in the form of hashtags, advertising texts or Tap Tags as "advertising". However, what is the situation when there are no commercial interests behind Instagram advertising? The Regional Court (LG) Karlsruhe clarifies.

As so often, a competition association targeted an influencer on Instagram. The influencer has over 4 million followers on Instagram and publishes (posts) several hundred images of herself per year. Her posts are sometimes accompanied by references to the manufacturers of the clothing she is wearing or other objects visible in the image. However, the influencer sometimes also emphasises the private purpose of her posts.

References to manufacturers (Instagram advertising) are sometimes found as hashtags in the accompanying text. In some cases, they were also integrated into the image as "Tap Tags", that is, as clickable buttons. The clickable buttons only become visible when the image is clicked once. If you then click on such a tag, you are taken to the Instagram account of the manufacturer or provider.

The competition association became aware of the influencer because she used Instagram advertising in the form of Tap Tags in three posts without marking this as "advertising". A cease-and-desist letter from the competition association was unsuccessful, so the dispute was ultimately settled before the LG Karlsruhe.

No private character, but Instagram advertising

The LG Karlsruhe (Urt. v. 21.03.2019, Az. 13 O 38/18 KfH) classified the three posts, due to the failure to mark them as Instagram advertising, as misleading conduct by omission and thus as a violation of competition law.

In principle, a person acts unfairly if they do not identify the commercial purpose of a commercial transaction, provided that this does not become apparent from the circumstances, and if the failure to identify it is capable of inducing the consumer to make a business decision that they would not otherwise have made.

According to the court, the three posts constituted prohibited covert advertising. For the emphasised private character of the posted photos and, if applicable, the accompanying story (reference to "mum", holiday context, etc.) does not change the existence of a commercial transaction. On the contrary: it is precisely the essence of influencer advertising that the influencer simultaneously works on his or her image and authenticity, for which purpose he or she promotes the appropriate brands and articles. In this way, the circle of followers is rather "cultivated".

The influencer is admired for her fitness and attractiveness, her access to luxury products and distant travel, etc. In this way, her target audience becomes particularly receptive to the brands and products promoted through Instagram advertising, according to the court.

Instagram's Tap Tags are also advertising

The influencer was not successful in arguing against the legal qualification of her posts as "commercial transactions" by saying that the tags can only be seen if you click on the photo. The argument: the viewer would first have to take action themselves by clicking on the respective photo in order to even get into the described sequence of links and thus be able to perceive the Instagram advertising.

However, this argument did not convince the judges. For not every user who clicks on the photo is looking for more information about the clothing items worn by the influencer, etc. The viewer may only want to know whether a photographer or other persons or information are stored. For this is often the case with Instagram. The fact that the user themselves must take action in order to ultimately reach the product provider's page does not change the commercial conduct of the influencer.

Conclusion

According to LG Karlsruhe, influencers must regularly mark their Instagram advertising in the form of hashtags, advertising texts or Tap Tags as "advertising". Only in a few exceptional cases can such marking be dispensed with.