- The Munich Higher Regional Court dismissed the appeal of the Association for Social Competition.
- No business activity was detected on Cathy Hummels, despite over half a million followers.
- Earlier judgments often provided for a commercial act even without consideration.
- Some influencers felt that these judgments were unfair and counterproductive.
- The unclear definition of advertising could confuse users, as everything is labeled as advertising.
- An appeal to the Federal Court of Justice was permitted in order to provide further clarity.
- The proposed Influencer Act is unlikely to provide much legal certainty.
Did Cathy Hummels advertise on her Instagram profile as an influencer? This question was addressed by the Munich Higher Regional Court after the Munich Regional Court surprisingly bucked the prevailing case law in Germany last year. See this article.
The Munich Higher Regional Court rejected the appeal of the Association of Social Competition on Thursday. It is interesting to note that the OLG did not recognize any business activities in the actions of Cathy Hummels, even though she has more than half a million followers and the absolute majority of courts have so far ruled that a business activity would generally be present even without concrete consideration for a concrete post. This, in turn, many influencers felt was unfair and lawyers even counterproductive, as it would primarily lead to everything simply being labeled as advertising, which in turn means that no one can know what content is actually advertising.
However, this does not mean that the legal dispute is off the table, as the Higher Regional Court fortunately allowed an appeal to the Federal Court of Justice. It is therefore up to Karlsruhe to finally decide on the key points, because the “Influencer Law” envisaged by the German government would bring little legal certainty according to current findings. You can find an overview of probably the most judgments on the subject directly via the search.
