According to a decision by the Federal Court of Justice (BGH), influencers may refer to companies on photos with products without a reference to advertising – if it is not too promotional. This applies, for example, to so-called “tap tags” on photos on Instagram, through which users are redirected to the profiles of manufacturers or brands.
“The mere fact that pictures on which the product is shown are provided with tap tags is not sufficient for the acceptance of such an advertising surplus”, the highest civil judge of Germany ruled on Thursday in Karlsruhe (I ZR 126/20, I ZR 90/20, I ZR 125/20). “In contrast, when there is a link to a website of the manufacturer of the product shown, there is usually an advertising surplus.”
The Association of Social Competition had objected to inadmissible surreptitious advertising and demanded an omission and warning costs. It was about lawsuits against the influencer Cathy Hummels from Upper Bavaria, who is also known beyond the internet, the Hamburg fashion influencer Leonie Hanne and the Göttingen fitness influencer Luisa-Maxime Huss.
The women were now largely right. In one case, however, the BGH saw things differently: for a contribution about a raspberry jam, one of the influencers had received something in return from the company – without marking the contribution as advertising. The judges assessed this as a violation of the law against unfair competition. A business act in favor of a third-party company is also present if the contribution is exaggerated in advertising “according to its overall impression”, for example because the merits of a product are praised without critical distance and beyond factual information.
The competition association had warned numerous influencers for using tap tags for surreptitious advertising. Like the three defendant women, many celebs regularly post it on Instagram.
In the lower courts, the courts had ruled differently on influencer marketing. So Hummels won in both lower courts, Hanne before the Hamburg Higher Regional Court. In the Huss case, the competition association emerged victorious in both instances. Huss and Hummels had on the occasion of a previous negotiation at the end of July stresses that paid advertising must be marked as such. “But it is just as important that you can still develop your free opinion,” said Hummels.
Huss denied the allegation of surreptitious advertising for referrals without consideration. They use tap tags to make it easier for users to get to a page, explained Huss. In this context, she argued with transparency towards her followers. The lawyer of the competition association, however, emphasized before the BGH that it must be made clear if commercial purposes are being pursued. “With the posts private messages and advertising are mixed up,” he criticized – and referred to deceived consumers.