Cologne Regional Court upholds strict influencer jurisprudence

There is already a lot of content on my blog about the question of whether and when influencers and streamers have to label their content. Most of them are very strict with influencers and what needs to be labeled and how.

Many colleagues are quite of the opinion that the verdict is too strict. Hope sprouted among these colleagues when the Munich Higher Regional Court took a less strict line in the Cathy Hummels case (see this article), thus confirming the Munich Regional Court (see this article). Shortly afterwards, the Higher Regional Court of Hamburg also seemed to change its mind and ruled that obvious advertising would not have to be marked (see this article). But when is advertising obvious?

The Regional Court of Cologne agrees with the strict courts on this issue, stating that

From an objective point of view, the posts are also aimed at influencing the business decisions of other market participants, at least due to the tags they contain relating to fashion companies […] and a manufacturer of make-up.

This is sufficient for the court, because

The lack of commercial intent on the part of the defendant cannot be inferred from the fact that the tags have (minor) editorial content insofar as they are used to inform followers about the manufacturers of the outfits worn or the make-up brand worn.

The mere intention of the influencer to possibly act commercially was sufficient for the court:

The fact that the defendant has a considerable economic interest in presenting itself to companies as a potential advertising figure in its posts speaks in favor of a corresponding intention on the part of the defendant. Thus, she makes a living through her influencer activity, which in any case also consists of publishing paid posts.

The Cologne Regional Court considered other representations to be protective allegations:

It is highly remote that posts sold by the defendant in other cases do not primarily serve commercial interests, but are primarily driven by a desire to inform their followers of their fashion preferences. This is particularly true in light of the fact that the defendant conducts its commercial influencer activities on a large scale and in a highly professional manner. This is evidenced by the employment of a manager in addition to the amount of their revenue.

As a further indication, the court also saw here the links, which would not be necessary if there were no commercial intentions:

Moreover, the setting of company tags leading directly to the Instagram pages of the manufacturers already speaks as such against the fact that the defendant was primarily concerned only with informing its followers about the manufacturers of the fashion and make-up worn by it. With the tags, the defendant does not limit itself to the mere notification of the manufacturers; due to the fact that they only appear when the image is clicked on and the possibility of forwarding, they rather represent an effective advertising presentation of goods comparable to a product catalog.

The Higher Regional Court of Braunschweig had already ruled similarly last year(see this article).

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.