The Regional Court of Frankfurt am Main has appealed against the vast majority of German regional and regional courts and rejected an injunction against an influencer.
By order of 24.06.2019, the 6th Board decided that, in the case of an Instagram account in which the commercial activity was obvious, a claim for disposal did not arise from Section 5a para. 6 UWG still in accordance with Paragraph 3a of the UWG in accordance with Section 6 para. 1 No. 1 TMG. The claim arising from section 5a para. 6 UWG was also not present because the link in the specific posts under attack was not capable of inducing the consumer to take a commercial decision which he would not otherwise have taken. The tags would refer the consumer only to the Instagram pages of various suppliers of goods and services, but not to shop pages on which the products and services can be purchased. According to the court, the assumption that followers would be tempted to visit shop sites by visiting the Instagram pages alone is remote.
Even if the Chamber’s decision is in line with that of the Munich Regional Court(see this article), this reasoning is extremely thin. If this justification were correct, no branding advertising or television advertising would be capable of inducing consumers to make a commercial decision. It is therefore likely that this statement of reasons will be corrected by the next instance.
Also in accordance with Section 3a UWG i.V.m. Section 6 para. 1 Point 1 TMG was rejected by the General Court on the grounds that it had not been set that the tags had been set for commercial purposes. Commercial communication does not take place where information relating to goods or services is provided independently and, in particular, without financial consideration. Even with this legal opinion, however, the court is currently very lonely, as can be seen from the large number of decisions on my blog.
The proliferation of decisions is becoming more and more confusing, the advice of corresponding clients is becoming more and more complicated and the uncertainty in the industry is currently great. It is slowly becoming time for a BGH decision on one or other of the legal issues in this area.
