Influencer’s decision-making around tagging brands on Instagram continues. And as has often been said here on the blog, the warning industry is more than actively topical. The lack of and/or incorrect marking of posts on Instagram, videos on YouTube or Twitch or tweets on Twitter quickly become just as expensive a warning threat as the missing imprint entries, privacy statements and much more.

Following the decision of the first Chamber of Commercial Matters of the Karlsruhe Regional Court (Az. 13 O 38/18 KfH), announced today, the influencer Pamela Reif has to mark her advertising placed on Instagram as such. The court thus follows the request of a competition association, whose members include publishers and advertising agencies.

The defendant’s Instagram posts, which were the subject of the lawsuit, consist of a photo of herself with accompanying text. If you click on the photo, you will appear as usual, which contain the name of the brand of clothing or accessories worn by the defendant. By clicking on such a tag you get to the Instagram account of the respective brand manufacturer. The posts are not marked as advertisements.

This is, as already often explained here in the blog with me, according to section 5a para. 6 UWG prohibited. This standard prohibits commercial acts the commercial purpose of which is not indicated, provided that it is not directly apparent from the circumstances and that the non-recognising is capable of making the consumer a commercial decision. which he would not otherwise have taken.

The Regional Court of Karlsruhe thus joins the now truly overwhelming majority of the courts and saw the post office as a violation of competition. The posts would arouse interest in the garments worn. Since the user can access the manufacturer’s page by just two clicks, the image and sales of the respective manufacturer are also promoted. The fact that the defendant, by saying that he or she wishes to avoid questions from his followers (“Where did you get your dress?”) by tagging, does not preclude the business purpose pursued at the same time.

Similarly, the court rejects other attempts at explanation, which I myself often hear as feedback, as irrelevant. Thus, the apparent privacy of some posts and the fact that the defendant is not paid for all the posts do not alter the competition violations of the posts at issue. It is precisely the essence of influencer advertising that the influencer always works on his image and authenticity at the same time, promoting the appropriate brands and articles, and “maintaining” the circle of his followers, who value his credibility and are part of the community “their” influencers. In this respect, the defendant always promotes her own business activities through her posts. Companies are interested in advertising as credible as possible.

Labelling as advertising is also not unnecessary. Under no circumstances would all followers be able to assess the advertising nature of the appearance of influencers, especially the sometimes very young subscribers of Pamela Reif.

I can only advise again and again to set up a serious self-reliance and the legal rules for doing business on social media or streaming platforms, and this threshold is reached faster than you would think. to take it seriously. This saves you some annoyance from competitors and authorities and allows you to focus on your own purpose, your business as an influencer.

Marian Härtel ist spezialisiert auf die Rechtsgebiete Wettbewerbsrecht, Urheberrecht und IT/IP Recht und hat seinen Schwerpunkt im Bereich Computerspiele, Esport, Marketing und Streamer/Influencer. Er betreut Startups im Aufbau, begleitet diese bei sämtlichen Rechtsproblemen und unterstützt sie im Business Development.

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