On 9 September 2021, the highest German civil court announced three judgements on influencer marketing. In summary, the court held that regarding influencer accounts the (commercial) purpose of self-promotion is generally obvious, but still their postings for brands against consideration or excessively promotional postings must be clearly marked as commercial communication (court's press release).
As a general rule, advertisements and commercial communication must be clearly recognizable as such to be distinguishable from other types of communication under German law. According to Sec. 5a VI German Act against Unfair Competition it is an unfair commercial practice if the commercial intent of a commercial practice is not identified, unless this is directly apparent from the context, provided that such failure can cause the consumer to take a transactional decision which he would not have taken otherwise. In addition, Sec. 6 German Act on Telemedia Services and Sec. 22 State Media Treaty provide additional rules on commercial communication and advertisement.
Influencing is business
The court held that professional influencers generally do not use social media for private purposes, but rather run a business (what most people have probably already figured out for themselves). At least, they promote their own business with their posts and, therefore, these quality as commercial practices. However, the commercial purpose of this self-promotion is clearly recognizable from the circumstances even without a "This is advertising" badge.
But even if customers know that influencers are running a business, the influencer must mark paid postings as commercial communication. According to the court, also the purpose of a post to promote another company must be recognizable for consumers. The non-disclosure of this commercial purpose of such a post is regularly suitable to induce the consumer to make a commercial decision, e.g. by clicking on the link leading to the social media profile of the company which he would not have made otherwise.
Even unpaid posts may also be subject to the obligation to be marked as commercial communication if the post is excessively promotional according to its overall impression. The court also gave some guidelines on this. A post is excessively promotional if it solely praises the advantages of a product without any critical distance in such a way that it is clearly not a facts-based information. The mere fact that pictures showing the product are provided with "tap tags" does not automatically mean it is excessively promotional. A link to a website of the manufacturer of the product depicted, on the other hand, is a strong indication for an excessively promotional post.
The Federal Court of Justice provided some helpful clarifications for influencer marketing. Regarding some details we still have to wait until the written grounds of the judgements are published.
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