So slowly it becomes lonely for the legal opinions that argue that Instagram posts by influencers only have to be labeled accordingly if there has really been a quid pro quo. Numerous district courts have already gone to court with influencers, including the district court Itzehoe, the district court Karlsruhe, the district court Heilbronn, and of course the district court Berlin. The verdict of the District Court of Munich on Cathy Hummels is still pending, but the state media institutions are becoming more and more active in the matter of YouTube. The case is now becoming increasingly clear, too, because in addition to the Chamber Court in Berlin, since the duties are only concrete, but for the most part the Landgericht Berlin has been proved to be right, the OLG Braunschweig has now also decided.
The latter ruled that there would be an objective presumption that it would be advertising subject to labelling if an influencer on Instagram, without any comprehensible factual reason, had news about products of well-known brand manufacturers. would publish.
The influencer would therefore have the burden of proof to prove that the publications are in fact only editorial reporting. The court’s presumption was based mainly on the usual setup on Instagram, according to which the manufacturers’ brands appear when they click on the images presented, leading users/followers of the influencer to the manufacturer’s Instagram page by clicking on them. to become. In the present case, the design of the photos was also more reminiscent of a fashion catalogue than of editorial reporting, as far as nothing special is done.
Like the Chamber Court and, most recently, the Regional Court of Karlsruhe, the Higher Regional Court of Braunschweig is of the opinion that sneaky advertising is not dependent on a real payment, especially for one specific post.
Accordingly, the defendant is also quite prepared to accept fees from third-party companies for product placement […] It merely makes an inappropriate distinction according to whether or not it receives remuneration and considers that advertising does not have been available for as long as no material consideration is provided by the undertaking concerned.
The receipt of a consideration […] is an indication of a commercial act, but it is not alone decisive. The expectation, which is obvious in the present case, to arouse the interest of third-party companies in influencer marketing in cooperation with the defendant and thus generate sales is sufficient.
Influencers, be it on Twitter, Instagram, Twitch or YouTube, can only be advised to obtain qualified advice on advertising, competition law and/or business start-up.