Law to clarify disputed influencer jurisdiction

The Federal Ministry of Justice and Consumer Protection intends to clarify that statements on social media about products that are made without consideration and primarily serve to inform and form opinions do not have a commercial purpose and therefore do not have to be labeled.

The clarification is intended to create a secure legal framework for gratuitous recommendations on the Internet by bloggers and influencers. The uncertainty is currently also very high among many clients. Just look at my posts on the topic of influencers(see here).

In view of the complexity of the competition and European law issues involved in the planned legal amendment, the Federal Ministry of Justice and Consumer Protection is seeking comments from interested parties such as associations, companies, academia, influencers and journalists on how this result can be achieved in a legally secure manner.

Background

In the case of statements made by influencers, several courts have taken different views on whether recommendations of products and services made free of charge also constitute a commercial act, the commercial nature of which must be disclosed pursuant to Section 5a (6) UWG. Since then, many influencers have been unsettled and mark many or all posts as
advertising. However, such over-labeling now makes it impossible to reliably identify statements that are specifically intended to promote the sale of products.

However, the scope of the German legislator is limited by European law requirements, as the UWG implements the Unfair Commercial Practices Directive (2005/29/EC) (UCP Directive). In principle, this conclusively regulates economic consumer protection.

So proposal applies the following addition to § 5a paragraph 6 UWG:

As a rule, a commercial purpose of a commercial act is not to be assumed if it primarily serves to provide information and form opinions and no remuneration or similar consideration was granted for this.

Such a clarification in the UWG is intended to provide a secure legal framework for bloggers and influencers and is in line with the administrative practice of other EU Member States. It would also be in line with the case law for contributions in print media, where an exception to a commercial act and thus the application of the UWG is generally assumed, insofar as the exercise of freedom of information and freedom of the press does not take a back seat to the recognizable intention to promote the sales of one’s own press product.

The criterion that the statement primarily serves the formation of information and opinion will be verifiable against objective factors and will prevent the exception from applying to statements that sound strongly promotional, such as exaggerated praise. Since the statement only has to serve primarily to inform and form opinions, the exception is also applicable if a journalist has received payment from the print medium for writing the article, an influencer also wants to raise his or her own profile with the statement, or a publisher also wants to promote sales of his or her press product through an article.

The design as a standard example also allows for a different assessment in special circumstances.

However, as an exception to the scope of application of Section 5a (6) UWG, the fulfillment of the requirement would have to be proven by the Influencers in the case of dispute. In this regard, the Ministry proposes that, as proof, a confirmation be provided by the company that no consideration has been given for the statement. The criterion of whether a statement primarily serves to form
information and opinions, on the other hand, would be determined objectively and would be measured according to whether elements of a factual presentation or personal opinion are in the foreground.

However, the clarification is not explicitly provided for in the Unfair Commercial Practices Directive (2005/29/EC). The German government is therefore in talks with the European Commission and will closely coordinate a possible draft law with it.

Let’s wait and see!

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.