#ad as hashtag for advertising not sufficient!

In line with the influencer rulings from Berlin, the Heilbronn Regional Court follows suit with a further clarification. Two points have been very relevant. One is the very fine line I have often mentioned until one counts as a commercial provider on social media platforms and numerous, extensive obligations from the UWG, from other civil law, from media law and from tax law apply. In the present case, the influencer was even still a student and earned about 1000.00 euros per month with the Instagram account. Truly not much. However, the commercial act was obvious, and not only because even a registered trade already existed (the lack of registration could rather have led to administrative fines). The Heilbronn Regional Court agreed with the opinion of the Berlin Regional Court and ruled that it was irrelevant whether the influencer was directly remunerated for the links made to the company pages (for example, through an affiliate program or other order). It was already sufficient that there were actions which served to maintain or even increase one’s own market value. Of course, this is a matter of interpretation and a question of the individual case. This then led the Heilbronn Regional Court to examine the actual content. And I see posts like this or similar ones all the time from Esport teams, influencers, casters and numerous other people on Twitter, Instagram or Facebook. After all, the influencer wasn’t paid a particularly lavish amount for a post, but essentially received only a certain amount in return. For example, the defendant was to promote an event with a link and used a T-shirt from the event, which she wore in a picture in the post. In return, she herself received two tickets to the event, each worth about 100 euros. Hands up, who has never published such or similar postings on his – perhaps yet to be commercially assessed Instagram or Twitter account? The court was not even satisfied with the tag #ad on the link, as it was not exactly clear that the entire post was sponsored or served to promote its own market value/trade. Anyone who could even remotely call themselves commercial should scrutinize their social media activities or, even better, ask a savvy lawyer for help. Neither the manner nor the amount of remuneration and certainly not the age or profession currently protect against warnings for possible surreptitious advertising. This is also becoming more and more frequent, since on the one hand court decisions are increasingly being made against influencers, and on the other hand competition associations are currently making an enormous business with just such simple warnings.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.