Status: 09.09.2021 10:31 a.m.
The Federal Court of Justice has ruled that influencers can refer to products without labeling it as advertising – but not always. In one case, an influencer received something in return from the company.
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 lawsuit against influencer Cathy Hummels was finally dismissed.
“The mere fact that pictures on which the product is depicted are provided with ‘tap tags’ is not sufficient for the acceptance of such an advertising surplus”, ruled the highest civil judge in Germany (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.”
In one case, the BGH decides differently
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, the fashion influencer Leonie Hanne and the fitness influencer Luisa-Maxime Huss. The women were now largely right.
BGH judgment on influencers: Are “tap tags” already advertising?
Claudia Kornmeier, SWR, daily news 12:00 p.m., 9.9.2021
In one case, however, the BGH saw things differently: Huss had received consideration from the company for a contribution about raspberry jam – without labeling 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.
BGH judgment on influencers: inside
Bernd Wolf, SWR, 9.9.2021 11:10 a.m.