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Cathy Hummels, surreptitious advertising as an influencer?
Today, there was actually supposed to be an interesting decision at the Munich Regional Court that shed light on the case law surrounding influencer marketing and the obligation to label posts on Instagram for which an influencer is not directly paid. The legal problems thus correspond to those in the trials surrounding Vreni Frost in Berlin and several other influencers.
Unfortunately, however, today there is neither a verdict, nor more legal certainty. While the Kammergericht in Berlin still provided a lot of concretization and in principle only does not require labeling when it comes to real editorial reporting, the judge in Munich seems to rather follow the arguments of Cathy Hummels and not those of the Verband Sozialer Wettbewerb. The judge is currently leaning towards the idea that advertising only needs to be labeled if the influencer has received something in return for the post, such as money, a gift or an invitation. VSW, on the other hand, continued to insist that it did not matter: Both the influencer and the companies linked to or shown in the image ultimately profited from the post even without remuneration. This is – at least slightly tending – also the opinion of other courts.
The judge also brought another argument into the discussion, namely whether it was not as well clear with well-known influencers like Cathy Hummels that almost half a million followers were not just her “friends”. However, this is also dangerous as an argument and suitable for everything, but not as a legally valuable, and hard delimitable. Council. Finally, what about the 1000s of possibly not-so-famous influencers?
The proceedings are now scheduled to continue in writing with a decision to be issued on April 29, 2019.
Overall, influencers, be they streamers, Instagram users or other social media providers, are currently facing a great deal of legal uncertainty, in which there are only a few boundaries that are also constantly shifting. Ultimately, the Federal Court of Justice will have to make a decision on this legal issue. The path to this is simpler in the present case, as the main proceedings are already underway. VSW announced that it would also take the dispute all the way to the Federal Supreme Court.
Marian Härtel is a lawyer and entrepreneur specializing in copyright law, competition law and IT/IP law, with a focus on games, esports, media and blockchain.
