After the current rulings around influencers, which I have summarized a little in this post, I received a few questions and comments that you would then simply mark every post as advertising and you would be off the hook. On television, there would also be “permanent commercials”. Therefore, today on the subject once a few remarks. It must be said, however, that currently only trends in case law can be discerned in this area. It is therefore difficult to provide explanations, and there are no decisions by the Federal Court of Justice either. All in all, one can only advise against the continuous and completely unreflected tagging if one wants to be on the safe side legally. From previous literature and case law, at least the principle can be derived that advertising (whether in Instagram posts, on YouTube videos or in Twitch streams) must be made recognizable. It must be made clear what about a piece of content is advertising, what is private and what may be editorial coverage. Appropriately, the Heilbronn Regional Court ruled that only the hashtag #ad may not be sufficient, as it is not clear which parts of a post on Instagram were advertising and what exactly the advertising looked like. With similar considerations, one could therefore certainly argue that in the case of the consistent use of a hashtag as an indication of advertising, even in posts that are, for example, clearly private, clearly classifiable as expressions of opinion or are editorial in nature without any problems, the hashtag in posts that would have to be marked is no longer sufficient, since users/readers can no longer distinguish what is now actually advertising. Tagging all posts is just as little sense and purpose of the prerequisites as if a daily newspaper writes “advertising” over every article, although it is in fact no advertising at all. The reference to the term “continuous advertising program” is also not helpful. In particular, this should not be confused with television programs in which the term “ironic” was used. The term originates from broadcasting law and, according to the “Joint Guidelines of the State Media Authorities for Advertising, for the Implementation of the Separation of Advertising and Programming and for Sponsorship on Television”(more information on this in this post), is television programs with a length of at least 90 seconds, the essential component of which is the advertising of products, but whose presentation is editorially designed. This is not readily applicable to Instagram or Twitter posts. As already mentioned, there are no court decisions on the subject and the opinions, even among lawyers, are as colorful as life here in Berlin. However, the risk of a further warning is given and the warning associations are currently very active. Although these may focus on current procedures for now. It is therefore better to clearly delineate when a post is clearly advertising, when it could be advertising in the sense of the current judgments, and when it is an expression of opinion and/or editorial reporting. The demarcation is not easy, but it is quite feasible. I can provide my clients with some guidelines in these matters and otherwise help them in an uncomplicated way through various communication channels.
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