Influencer: contractual penalty after cease-and-desist declaration

The Koblenz Regional Court has ruled that influencers who present commercial content in social media in the course of business must make the commercial purpose of the respective publication clear.

So far, nothing new. In this case, the influencer had, among other things, published photos of herself showing products of various kinds and had also published texts in which products were positively reviewed. These photos and texts provided this partly additionally with links to the web pages of these products. Thus, on the account there are also photos and texts about visits to a hair salon, where they received haircuts and cosmetic services partly free of charge. In return, with the consent of the owner of the hair salon, the defendant took photos during her visits to the salon and published them on her account. Furthermore, it published a link to this, so that after a “click” the name of the account of the salon was displayed and after a further “click” on this name the user was led to the account (so-called tap tag). In addition, in an associated text, she praised the hair salon and recommended the quality of service there, the atmosphere and the value for money.

As early as 2017, the influencer issued a cease-and-desist declaration to the effect that she would refrain from presenting commercial content in the course of business on social media without making clear the commercial purpose of the publication, unless this purpose was immediately apparent from the circumstances. After further photos were now discovered on social media, the creditor and plaintiff demanded a contractual penalty of 15,300 euros for a triple violation of the cease-and-desist declaration.

The Regional Court of Koblenz has now ordered the defendant to refrain from presenting commercial content in the course of business on social media without making clear the commercial purpose of the respective publication, unless this is directly apparent from the circumstances, and furthermore to pay the requested amount of 15,300 euros.

In the opinion of the district court, the plaintiff’s conduct constitutes a commercial act, since she supported the business activities of the hair salon with the so-called tap tag in conjunction with a picture and recommendation. The Regional Court classified the photos as no longer being of a merely “private nature” and considered it proven that the defendant hereby quite deliberately influenced the decisions of consumers in order to promote the sales of the hair salon, at least indirectly. The court considered the declaration signed by the owner of the hair salon that she had no business relations with the defendant and that the defendant had paid for services and goods of the salon to be false in content. It considered the action to be unfair because the defendant neither made the commercial purpose of its conduct in favor of the hair salon clear nor was it apparent from the circumstances. This is likely to induce the consumer to make a commercial decision which he might not have made if the commercial purpose had been indicated. Since this was not a “business account”, the very first page on which no trademark/name was visible without further “click” should have been marked with the appropriate notice that this was advertising. It was also not obvious to every person who visited the defendant’s account that the defendant was an influencer. The district court generally regards the activities of influencers as advertising. It sees the defendant as an entrepreneur who cooperates with various partners and also markets itself.

The judgment is not final. An appeal has been filed.

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.