Karlsruhe Higher Regional Court sticks to tough influencer case law; tap tags decisive

The proceedings did not focus on the general question of the obligation to mark all posts of the defendant. for decision, but was solely concerned with whether such labeling is required when “tap tags” are used that lead to the pages of other companies. Tap tags are clickable areas within a posted image that contain links to the vendors or manufacturers of specific products.

According to the court, the influencer’s posts and tap tags are commercial acts and not mere expressions of opinion inserted only to pre-empt requests from followers. The required company reference was given both with regard to the Influencer’s own business operations and with regard to the tagged companies. The market reference required in addition was also present, because the posts served both to enhance the company’s own image and thus to increase the value of the services it offered, and to promote third-party sales.

The OLG also found a violation of competition law due to the prohibition of unlawful disguised advertising from § 5a para. 6 UWG adopted. From the consumer’s point of view, the commercial purpose of the tap tags was not immediately apparent from the circumstances. It is clear to the followers that the influencer posts in order to pursue her own economic interests. However, this is not the case for the additional commercial purpose of working for the benefit of other companies and promoting their products. Since the influencer is perceived by her “community” as “authentic” and “one of them,” competitive risk results from the mixture of this private appearance on the one hand and communication elements influenced by third-party interests on the other. This lack of transparency justifies an obligation to clarify.

What is interesting in the proceedings is that the OLG, because of the divergent case law on advertising labeling of Instagram posts, finally allowed the appeal to the Federal Supreme Court.