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Rechtsanwalt Marian Härtel - ITMediaLaw

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Rechtsanwalt Marian Härtel - ITMediaLaw

Influencer: Just tag every post with advertising?

7. November 2022
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After the current rulings around influencers, which I have summarized a little in this post, I received a few questions and comments that you would then simply mark every post as advertising and you would be off the hook. On television, there would also be “permanent commercials”. Therefore, today on the subject once a few remarks. It must be said, however, that currently only trends in case law can be discerned in this area. It is therefore difficult to provide explanations, and there are no decisions by the Federal Court of Justice either. All in all, one can only advise against the continuous and completely unreflected tagging if one wants to be on the safe side legally. From previous literature and case law, at least the principle can be derived that advertising (whether in Instagram posts, on YouTube videos or in Twitch streams) must be made recognizable. It must be made clear what about a piece of content is advertising, what is private and what may be editorial coverage. Appropriately, the Heilbronn Regional Court ruled that only the hashtag #ad may not be sufficient, as it is not clear which parts of a post on Instagram were advertising and what exactly the advertising looked like. With similar considerations, one could therefore certainly argue that in the case of the consistent use of a hashtag as an indication of advertising, even in posts that are, for example, clearly private, clearly classifiable as expressions of opinion or are editorial in nature without any problems, the hashtag in posts that would have to be marked is no longer sufficient, since users/readers can no longer distinguish what is now actually advertising. Tagging all posts is just as little sense and purpose of the prerequisites as if a daily newspaper writes “advertising” over every article, although it is in fact no advertising at all. The reference to the term “continuous advertising program” is also not helpful. In particular, this should not be confused with television programs in which the term “ironic” was used. The term originates from broadcasting law and, according to the “Joint Guidelines of the State Media Authorities for Advertising, for the Implementation of the Separation of Advertising and Programming and for Sponsorship on Television”(more information on this in this post), is television programs with a length of at least 90 seconds, the essential component of which is the advertising of products, but whose presentation is editorially designed. This is not readily applicable to Instagram or Twitter posts. As already mentioned, there are no court decisions on the subject and the opinions, even among lawyers, are as colorful as life here in Berlin. However, the risk of a further warning is given and the warning associations are currently very active. Although these may focus on current procedures for now. It is therefore better to clearly delineate when a post is clearly advertising, when it could be advertising in the sense of the current judgments, and when it is an expression of opinion and/or editorial reporting. The demarcation is not easy, but it is quite feasible. I can provide my clients with some guidelines in these matters and otherwise help them in an uncomplicated way through various communication channels.

Marian Härtel
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.

Tags: Case lawEntscheidungenFederal courtInfluencerInformationInstagramJudgmentsKISponsorTwitchTwitterWarningYouTube

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  • Informationen
    • Ideal partner
    • About lawyer Marian Härtel
    • Quick and flexible access
    • Principles as a lawyer
    • Why a lawyer and business consultant?
    • Focus areas of attorney Marian Härtel
      • Focus on start-ups
      • Investment advice
      • Corporate law
      • Cryptocurrencies, Blockchain and Games
      • AI and SaaS
      • Streamers and influencers
      • Games and esports law
      • IT/IP Law
      • Law firm for GMBH,UG, GbR
      • Law firm for IT/IP and media law
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Testimonials
    • Team: Saskia Härtel – WHO AM I?
    • Agile and lean law firm
    • Price overview
    • Various information
      • Terms
      • Privacy policy
      • Imprint
  • Services
    • Support and advice of agencies
    • Contract review and preparation
    • Games law consulting
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Legal advice in corporate law: from incorporation to structuring
    • Legal compliance and expert opinions
    • Outsourcing – for companies or law firms
    • Booking as speaker
  • News
    • Gloss / Opinion
    • Law on the Internet
    • Online retail
    • Law and computer games
    • Law and Esport
    • Blockchain and web law
    • Data protection Law
    • Copyright
    • Labour law
    • Competition law
    • Corporate
    • EU law
    • Law on the protection of minors
    • Tax
    • Other
    • Internally
  • Podcast
    • ITMediaLaw Podcast
  • Knowledge base
    • Laws
    • Legal terms
    • Contract types
    • Clause types
    • Forms of financing
    • Legal means
    • Authorities
    • Company forms
    • Tax
    • Concepts
  • Videos
    • Information videos – about Marian Härtel
    • Videos – about me (Couch)
    • Blogpost – individual videos
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    • Third-party videos
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