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BGH on Instagram: What is just information, what is surreptitious advertising?


When do influencers have to mark their posts on Instagram as advertising? The BGH is currently examining several cases, including Cathy Hummels. The industry hopes for clarity through the judgment.

Enlarge image

Influencer Cathy Hummels at a hearing before the Munich Higher Regional Court

Photo: Sven Hoppe / dpa

They post photos and videos on Instagram about their home, their travels or about fashion and fitness trends.

Often, however, influencers also provide information on the social media platform as to which cosmetic products they swear by or where they bought their chic bags.

Is that still information or is it already surreptitious advertising?

The Federal Court of Justice (BGH) is examining this on Thursday (since 9:00 a.m.) on the basis of three influencers;

including Cathy Hummels, the wife of soccer star Mats Hummels.

They were sued by the Association of Social Competition (I ZR 126/20, I ZR 90/20, I ZR 125/20).

A judgment is no longer expected on Thursday.

Why is?

Cathy Hummels (I ZR 126/20), Leonie Hanne (I ZR 90/20) and Luisa-Maxime Huss (I ZR 125/20) regularly publish posts on Instagram with so-called tap tags that refer to companies and brands.

One click - and you are directly on the product's Instagram profile.

The competition association considers this to be inadmissible surreptitious advertising, it demands omission and warning fees.

What is the problem?

Advertising must be labeled.

But what is commercial and what is private?

It is difficult to differentiate between influencers.

According to the media law firm Wilde-Beuger-Solmecke, postings are surreptitious advertising if editorial texts and advertising do not clearly stand out.

Even without consideration, you could benefit from a posting - for example through a future company cooperation.

Why does the BGH have to deal with it?

So far, courts have judged very differently.

A fundamental decision by the highest court is still pending.

How did the lower courts decide?

Cathy Hummels (more than 600,000 Instagram subscribers) was successful in two instances.

The posts are not "unfair in terms of competition law," according to the Munich Higher Regional Court.

It's only about products for which Hummels has not received anything in return, including a blue fabric elephant from her son Ludwig.

She marks other contributions as "paid partnerships".

The fashion influencer Leonie Hanne from Hamburg (3.6 million subscribers) was defeated by the regional court, but got the right from the OLG: The tap tags are not anti-competitive because the commercial purpose is clear.

It is also not clear whether the influencer has received anything in return for her.

Luisa-Maxime Huss from Göttingen (150,000 subscribers), who posts fitness and nutrition tips, lost twice.

The lack of identification could lead consumers to business decisions that they would not otherwise make, according to the OLG.

The influencer got into trouble because of a raspberry jam, among other things.

What are the consequences of the Karlsruhe ruling?

It is questionable whether celebrities will be able to recommend products and services in the future without risking warnings.

It is important to mark posts as advertising when money has flowed or there has been consideration, says Cathy Hummels.

"But it is just as important that you can still develop your free opinion."

It's not just about the three women: The association has warned numerous influencers for surreptitious advertising.

Pamela Reif (eight million subscribers), who advertises fitness products, among other things, is hoping for the BGH: She suffered a defeat at the Karlsruhe Higher Regional Court.

mak / AFX

Source: spiegel

All tech articles on 2021-07-29

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