The Munich district has decided: Cathy Hummels makes no surreptitious advertising. The rationale for this is that her Instagram account has a commercial purpose that is obvious to anyone, and thus allows her to point out products.
So far, so unclear, because: The Berlin-based Association Social Competition has involved in addition to Hummels and fitness model Pamela Reif and other influencers in litigation. Overall, according to association information, a two-digit number of warnings was sent. And Reif has unlike Hummels lost before the district court Karlsruhe and now moves to the next instance.
In the influencer scene, therefore, there is uncertainty about what is still allowed and what is not.
The lawyer Carsten Ulbricht from the Stuttgart law firm Menold Bezler, who specializes in Internet and digital transformation, and Helge Ruff, founder and CEO of the social media agency OneTwoSocial, answer the topic.
LEAD: Sir Ulbricht, what is allowed and what not?
Carsten Ulbricht: The legal principles are actually quite simple: If I pursue a commercial purpose with my posting and this is not recognizable at first glance, the contribution should be marked as advertising. Unfortunately, different provincial courts interpret these principles differently in previous judgments.
One thing is clear: Influencers who receive something in return for their contributions – for example, a fee – should in any case record a label. Otherwise, it depends on whether the product reference is placed in an editorial context or it is just a clumsy and incoherent advertising. In the opinion of the LG Berlin, in the first case there is no need for a marking, in the latter case, it is true.
Can influencers and, above all, prominent influencers recommend products or services without risking warnings?
Carsten Ulbricht: But of course. The legal requirements of the law against unfair competition are not about banning something. Ultimately, it’s all about transparency. An average informed user of the respective platform should be able to recognize which motives are behind a product reference of an influencer. It just makes a difference whether a “star” gets money for a post or finds a product “just as” good. With proper labeling, a product recommendation is always permitted.
Worth knowing about this topic can be found in the report “Influencer Marketing – legally compliant and secure”, the W & V together with the lawyer specializing in online law. Carsten Ulbricht has implemented. The detailed report provides checklists on the conclusion of the contract and costs, as well as a large overview of labeling requirements.
Pamela Reif has lost in Karlsruhe before the district court – Cathy Hummels won her trial in Munich. Does it therefore depend on where I live, whether and above all how I must mark my contributions in social media as advertising or not?
Carsten Ulbricht: That’s not the way to say that. As with many new legal issues, the interpretations of different regional courts sometimes differ until a common line is found or judgments of the higher regional courts are issued. Often, however, the facts underlying the verdict also differ. Again, this or the quality of the argument of his own lawyer sometimes lead to different judgments.
The judgment of the Landgericht München in the matter Cathy Hummels has now brought a fundamentally new argumentation. Judging by the number of followers and the verified account of Cathy Hummels, the judges assume that it is clear to everyone that the channel also serves commercial purposes. For this reason, product links for which Ms. Hummels did not receive anything in return would have to be labeled similarly to fashion magazines.
Also interesting: The perfect influencer briefing
It should arrive to the individual case. What does that mean? What gives influencers security here?
Carsten Ulbricht: Influencers do not really have it easy at the moment. Unfortunately, the evolving legal situation is currently leading to a great deal of uncertainty and too much emphasis being placed on too little. At the moment this is probably the safest option. The current judgments of the regional courts of Berlin, Karlsruhe and Munich draw so slowly a clearer picture. In that regard, we believe it is well justifiable for influencers to follow these judgments and the requirements described in this interview.
Specifically: When is the reference “advertising / unpaid” for self-acquired products necessary?
Carsten Ulbricht: If someone posts only privately, with his channel so no money earned or earn, it needs, in my view, no labeling. Anyone who wants to earn or earn money as an influencer with his channel should include the word “advertising / unpaid” if an (unpaid) product reference is not featured in an editorial context (eg a small “story”), but essentially the product , Influencers with a long reach and a verified account, where the commercial purpose is so recognizable at first glance, needs the product according to the current judgment of the LG Munich product references, for which there is no return, but no longer to mark.
What would a law ideally look like that leaves no questions unanswered?
Carsten Ulbricht: The “law” unfortunately can not change much here. The legal basis is actually clear. The point now is that the courts interpret the legal requirements uniformly. This is a process that takes a while. Due to the considerable number of ongoing proceedings, which is mainly run by the Association Social Competition, I am sure that the legal certainty in the various constellations is growing. Since I have already fought various procedures with the Association Social Competition, I can say that one of their side will not let up. Influencers, as well as agencies and companies that use Influencer Marketing, are therefore well advised to know the current requirements and pass it on to the influencers accordingly.
As a verdict against the drugstore chain Rossmann has shown, liable for the lack of advertising labeling namely not only the influencers, but also the advertised company. The current judgments should therefore be observed and the further development observed. In 2019, however, the requirements for advertising labeling, which already have a clear line, will increasingly be clarified by further (upper) court decisions.
Mr. Ruff, what does this judgment mean for companies who want to use influencers for their brands? Can one advise without restriction?
Helge Ruff: The verdict has an impact on how brands and influencers should continue to interact with each other. It still applies that both sides must know the labeling obligation. For this purpose, as Carsten said, it is important that both sides are liable. Therefore, companies should always keep this in mind.
It must be mentioned, however, that the probability of being warned is still very low. Therefore, scare tactics is not appropriate.
What should companies pay attention to when choosing influencers against this background?
Helge Ruff: When selecting influencers, I would advise paying attention to whether they have marked their collaborations in the past. This shows a professional approach. In addition, the conditions of a marker with the influencer should be discussed. The influencer should always agree. Generally, I would contractually commit influencers to co-brand advertising for the product.
Mr. Ruff, is this judgment throwing the genre forward or backward?
Helge Ruff: The verdict continues to show the disagreement between the judges. The acquittal has taken rather sharpness. It will have no influence on the popularity of the genre in social media marketing. But it does not contribute to safety in the procedure.
Also interesting: Influencers are becoming increasingly important for advertising
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