Brief reminder: Influencer as target of warning letters

Since I was contacted yesterday by a client who received a warning letter due to his Twitch channel, I would like to briefly point out a very important ruling once again. For example, the Berlin Regional Court prohibited an influencer from linking to manufacturers and/or product pages in her social media channels, even though the products were purchased by the influencer herself and there was apparently no payment from an advertiser.

This was the decision of the court:

In the Board’s view, the respondent’s Instagram posts, which can be seen in Annexes Ast A 4 a to A 6 c, constitute business acts to promote other companies.

It is advertising intended to increase sales of the products presented (essentially clothing and cosmetic items, accessories and products of the entertainment industry). The interest in the products is aroused by the respondent by presenting them on her own body or in connection with her person. Product sales are facilitated by the fact that the prospective customer is directed to the Instagram account of the product providers when the links are clicked.

In its decision of 11.10.2017 – Ref.: 5 W 221/17, the Court of Appeal stated that anyone who presents products on their Instagram page and links to the websites of the companies concerned and receives fees or other benefits such as discounts or bonuses in return, even if only by sending the products presented free of charge, is acting commercially to promote third-party competition.

In the present case, it cannot be established that the respondent received fees or concrete advantages from the companies in return for all the links in question.

On the contrary, with regard to several articles, for example for the products shown in Annex A 4 (blue sweatshirt, brooch, fanny pack), she has made it credible by submitting invoices that she purchased these products at her own expense. However, this does not lead to the denial of a commercial act of the defendant to promote foreign competition in the present case.

The manner of presentation of the goods and the linking to the Instagram presences of the respective companies objectively serve to promote the sales of the companies listed as Exhibits 4 c, 5 c and 6 c and thus their commercial purposes.

Followers are redirected to the companies’ Instagram account through the link. There they can view not only the product shown by the defendant, but numerous goods from the entire store of the respective companies. The respondent enables these companies to present their products to an interested audience and – which is also partly done in the companies’ Instagram accounts or websites linked to them – to offer their goods for sale.

The Board assumes with sufficient probability in preliminary injunction proceedings that there is not only an objective connection between the actions of the defendant and sales promotion, but that the defendant also has the objective of influencing the consumer’s business decisions with regard to products; an intention to promote competition is not required (see in this respect: Köhler/Bornkamm/Feddersen, UWG, 36th ed., 2018, § 2, paras. 45+46).

And even though the ruling has been widely criticized, it is not completely absurd. Influencers and streamers I know also like to use links to manufacturer pages and the like to draw the attention of potential sponsors in the first place, for example, or to use these posts (and the reach they then generate in social media channels) as examples in pitches and offers. Actually a normal way, but this then already establishes a business relationship that cannot be completely dismissed.

Following the ruling of the OLG Celle, according to which an Instagram post is not sufficiently recognizable as advertising if the hashtag “#ad” is not clear and not recognizable at first glance, this is now another step towards careful observation of the brave new social media world.

Since the now well-known and notorious Association of Social Competition (VSW) continues to be very active, further warnings and court cases are to be expected. Especially younger streamers and influencers who want to take the first steps towards financing their activities should urgently seek professional advice on what is allowed, when and in what way.

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.