OLG Cologne with differentiated influencer decision

For a long time, nothing has been heard from the field of influencer jurisprudence and furthermore, there is no BGH jurisprudence on the subject. Slowly, however, the decisions of various higher regional courts are accumulating and allow at least a vague picture of the questions of when one is acting commercially, when this action is obvious, and when labeling is therefore required.

The first guideline gives quite a bit to evaluate, for example, sponsored posts, etc., whether on websites, as a streamer, or on Instagram:

The fact that statements made by influencers are also of an editorial or informative nature does not prevent them from being assessed as commercial activities, because even journalism-related activities are not exempt from UWG control if they are indirectly financed by advertising.

The second guiding principle takes influencers to task to a certain extent for claiming that commercial activity is obvious just because they have many followers, be it on Twitch, YouTube, Instagram or TikTok:

Labelling influencer messages on Instagram is not always dispensable, even for profiles with a large number of followers, because this service in particular benefits from profile owners not only describing themselves as commercially active, but also as authentic.

This logic should also apply 1:1 to Twitch, but of course also to YouTube, as these are – at least officially – not purely advertising platforms.

The court also comments on the distinction between editorial content and “advertising”

In the view of the Senate, it can neither be concluded across-the-board that even a minor editorial reason already excludes commercial interest, nor that unfairness would have to be assumed solely upon proof of a concrete payment. Rather, it is decisive that § 5a para. 6 UrhG only excludes a presumption in favor of a predominantly commercial intention if, on the one hand, both a concrete payment and an indirect advantage on the part of the benefiting company are excluded and, on the other hand, there is no one-sided and excessive emphasis on the objectively benefiting company.

So, in case of doubt, it is up to the Influencer to disprove the commerciality of a particular piece of content.

On the one hand, the blogger must be allowed to prove that and to what extent the products and accessories presented by him were procured with his own funds, on the other hand, it must be weighed whether and to what extent the texts set to the image representations have an information content and whether the links to the companies objectively benefiting from them are editorially induced and also necessary in the form undertaken in order to fulfill the editorial occasion. In this way, account is taken of the risk potential that social communication in particular carries for consumer interests. Indeed, the labeling requirements for commercial communications are intended to protect consumers from being misled about the actual motivation of a communication, but also to limit economic influences on the content of the communication. The principle, originally developed for broadcasting and the press, is also notable in social communication on services like Instagram. Particularly due to the mixing of private communication with the development of an image of the protagonists that is attractive for corporate communication as a result, a clear separation must be made between commercial and content messages. […] The labeling obligation does not prohibit the mixing of editorial and advertising communication, it only requires the creation of transparency, i.e. in the case of mixing, labeling as advertising. The defendant’s fears that its activities as a whole could be limited or impaired by such a duty are unfounded in this respect. It may communicate in the manner in dispute, but in the absence of self-promotion and in the absence of an editorial reason, it must label the communication as commercially motivated.

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.