The problem of influencer sneaking advertising
The District Court of Hamburg agrees with the rulings on influencers and sneaky advertising. So far, only the District Court of Munich has shown a different tendency(a summary can be found in this post).
It is interesting that the verdict is NOT about Instagram, but about an interactive magazine for mobile phones. This shows, as I have pointed out here and here, for example, that the current case law is by no means limited to a particular social media network.
At the request of a warning association, the court ruled that the start-up that publishes the magazine is prohibited from publishing editorial articles in the course of business without the commercial purpose of presenting these publications.
The magazine published a post as follows:
Nothing is better known
than his smartphone! Therefore
multimedia systems are ideal,
who use their own mobile phone, e.g.
“Never search your car again. in which
I parked the street again? My app
Tip: Find my car.
Sentences like this are a thing of the past.”
The post was overwritten with “SPONSORED CONTENT…”. However, other courts have already decided that this is not enough, as can be read in this blog post. Also, or even more so, the hashtag #ad is not enough.
To that end, the Court stated:
Also the reference “Sponsored Content” does not sufficiently illustrate the commercial advertising character of the post. The term translates as “supported content” and does not make it sufficiently clear that this editorial post is a commercial advertisement. In everyday language, the concept of the sponsor is rather associated with a disinterested support of a project. The term is well known from sport; so the jersey sponsor is someone who supports a sports project or a team and receives an advertising opportunity for the equivalent, for example on the jersey of a team. As a rule, the supporting part predominates; the sponsor hopes that his payment will involve the good image of the supported team. A purchased editorial advertisement is not subject to the concept of “sponsoring”. The Board can also assess this on its own basis. It does not belong to the target group of young women between the ages of 18 and 24; however, this is an understanding of a linguistic term which the members of the Chamber can judge and evaluate from their understanding of the language.
and comes to the conclusion:
In the board’s view, the statement “sponsored content” is not sufficiently clear and meaningful; rather, the statement is intended to disguise the advertising character of the editorial contribution. It is necessary to label with a clearly highlighted term such as ‘display’.
All streamers and other influencers should therefore pay attention to the current case law. The claims for damages can otherwise be enormous. This is especially true, as currently only warning clubs are active for the most part. Once the wave of co-advertisers is kicked off and warnings follow, the financial risk is increased once again.