In the meantime, there is a few more information about the decision of the Court of Appeal (the Higher Regional Court in Berlin) regarding the circumstance when influencers (and also thinkologically also streamers, esport teams etc. – see my articles on this) have to mark content as advertising .
In their decision, the judges of the 5th Civil Senate stated that it was not justified to regard contributions by an influencer containing links to product provider websites as advertising requiring labelling in general. On the contrary, it is always necessary to examine the specific content and the specific circumstances of each individual case. Ideological, scientific, editorial or consumer policy statements by undertakings or other persons which are not functionally related to promotion or procurement would not be subject to the UWG.
In the specific case, however, the defendant acted not for private purposes but as an entrepreneur with the posts complained of on Instagram. The links it set with forwards to the Instagram accounts of other companies were likely to promote the sale of the goods offered by those entrepreneurs. Two of the three posts complained of did not serve alone or primarily to inform and form their followers’ opinions, so that the defendant could not rely in that regard solely on an editorial contribution protected by fundamental law. published.
In the view of the Court of Appeal, the decisive factor in these two posts was, among other things, the mixing of editorial statements with links to be qualified as advertising or the lack of a reference to the content of each of the respective post. In that regard, the judges of the 5th Civil Senate consider that the tags set in those two Instagram posts have no information content. The only discernible purpose was to arouse the curiosity of the visitor and the expectation that he could learn more by clicking on the mouse. The visitor thus attracted is directly confronted with the advertising of the company in the case of these posts if he follows the link.
The third Instagram post, which the applicant complained of, was, on the other hand, primarily concerned with the defendant’s presentation of certain garments and accessories, which was of interest to her followers, so that, in the view of the Court of Appeal, it was only a matter of had an editorial contribution which was solely used to inform and form the opinion of its addressees. In that regard, the defendant had demonstrated, by affidavit, that it had not received any remuneration for that third Instagram post from the companies referred to in the tags or from third parties. In the opinion of the judges, the judges did not have an obligation on the respondent to include this post with a reference to (s) a commercial purpose, taking into account the overall circumstances.
Finally, the Court of Appeal made it clear that differentiation according to the subject matter of editorial reporting or expression was incompatible with freedom of expression and freedom of expression. Reports on fashion trends are no less worthy of protection than reports on socio-political and day-to-day political issues.
No further appeal is pending against the judgment in the urgent proceedings. It remains to be seen, therefore, whether the Association of Social Competition will take a substantive action.
Fortunately, there are now a few guidelines, details should be clarified by influencers, streamers, etc. but still with a lawyer, since the legal issues are more and more the content of court decisions and warnings.