The Future of Influencer Regulation in Germany: A Look at the French Model and the 2022 Changes

Introduction:

Influencers are individuals who play a significant role in the modern advertising landscape due to their strong presence and influence on social media. They are not only content creators, but also opinion leaders who can influence the buying behavior and attitudes of their followers. They use platforms like Instagram, YouTube and Twitch to create content that covers a wide range of topics, from fashion and cosmetics to gaming and lifestyle. Yet their influence often extends far beyond their own community and can shape trends and discourse in broader society.

In Germany, as in many other countries, influencers are subject to certain legal frameworks. These relate in particular to the labeling of advertising content to ensure transparency and protect consumers from misleading advertising. In addition, they must also observe other legal aspects, such as copyright and data protection law.

More recently, France passed a new law that tightens regulation of influencers. This law goes beyond simply labeling advertising content and includes a number of stricter regulations aimed at better protecting consumers and increasing transparency in the digital advertising landscape.

While French law tends to focus on fashion and cosmetics, it’s important to note that the target audience of gaming influencers can also be very receptive to related products like energy drinks. These influencers often reach a younger target group that can be particularly vulnerable to advertising messages and therefore needs special protection.

In this context, the question arises whether a similar law is also being considered in Germany. Given the growing importance and influence of influencers, it is likely that regulation in this area will be further tightened in the coming years. However, it remains to be seen what form this regulation will take and how it will affect the practices of influencers and the companies that work with them.

The French Influencer Law and its Effects

France recently passed a comprehensive law for influencer advertising, which restricts the work of content creators significantly more than in Germany. The law contains a number of regulations, including the obligation to label filters and advertising content by means of banners on photos and videos, an accountability obligation for platforms, and a general ban on advertising cosmetic surgery, medicines, nicotine products, or sports betting. In addition, platforms such as Facebook, Instagram and TikTok will be required to actively delete content in the event of violations.

The main goal of the French law is to protect young consumers who mainly consume influencer content and prevent social media fraud. It sets the same standards for advertising on social platforms that apply to advertising content in traditional media such as TV or radio.

Could a similar law be introduced in Germany?

Another important aspect in this discussion is the question to what extent the existing regulations are already sufficient. In my view, many of the regulations contained in the French law are already regulated in other laws and ordinances, such as the Interstate Treaty on the Media. Therefore, I believe that it is not necessary to enact new laws, but rather to consistently apply and enforce the existing regulations.

This discussion reflects the complexity and challenges associated with regulating influencer marketing. It is a balancing act between protecting consumers, promoting innovation and maintaining legal certainty. Therefore, it is likely that this discussion will continue in the coming years as legislators attempt to find an appropriate legal framework for this relatively new form of marketing.

The legislative changes in 2022 and their impact on influencers in Germany

In 2022, the Act to Strengthen Consumer Protection in Competition and Trade Law (GSVWG) came into force in Germany. This law aimed to clarify in which cases postings are considered commercial communication and thus must be marked as advertising. The amendments made by this Act concern the Unfair Competition Act (UWG). Colloquially, these changes are also referred to as the “Influencer Law.”

The changes made by the GSVWG included three major innovations:

1. The definition of the so-called “commercial act” in § 2 para. 1 No. 2 UWG new version (nF) has been supplemented. In the future, not only an objective, but also a direct connection to sales promotion must exist for the assumption of a commercial act.
2. In addition, there is an addition in § 5 a para. Section 4 UWG nF: If a commercial act exists, it must also pursue a commercial purpose that makes it necessary to label it as advertising. The new version clarifies that in any case there is no commercial purpose if the trader does not receive or is not promised any remuneration or similar consideration for the act from the third party company.
3. Also new is the legal burden of proof rule, which states that it must be assumed that the Influencer has received consideration. Consequently, the existence of a commercial purpose is initially assumed. However, the law allows the possibility to prove the contrary.

Despite these efforts by the legislator, however, absolute legal certainty in the area of influencer marketing still cannot be assumed. Nevertheless, a consistent line can slowly be identified, which will have to be substantiated by further rulings in the future.

Conclusion and outlook

In light of recent developments in France and changes in German law in 2022, the question arises as to what the future of influencer regulation in Germany might look like. While some experts advocate tightening regulation to better protect young consumers and prevent social media fraud, others warn against overregulation and stress the importance of transparency and influencer ownership.

It remains to be seen whether Germany will introduce a law similar to France’s. What is clear, however, is that influencer regulation is an increasingly important issue that is receiving attention at both the national and European levels. It is therefore likely that we will see further changes and adjustments in this area in the coming years.

Influencer regulation in Germany is a dynamic and constantly evolving field. The recent changes in 2022 and the discussions about a possible new law based on the French model show that this issue is becoming increasingly important at both national and European level.

In 2022, the Act to Strengthen Consumer Protection in Competition and Trade Law (GSVWG), also known as the “Influencer Act,” came into force in Germany. This law aims to provide clarity on when postings are considered commercial communications and thus must be labeled as advertising. It made changes to the Unfair Competition Act (UWG) in an attempt to both provide clarity for influencers on when a post should be labeled as promotional, as well as provide transparency for consumers to distinguish promotional posts from non-promotional posts.

Despite these efforts, however, absolute legal certainty in the area of influencer marketing still cannot be assumed. A case-by-case assessment remains necessary and the announced clear regulation is not provided by the amendments to the law. Nevertheless, a consistent line can slowly be identified, which will have to be substantiated by further rulings in the future.

It is important that influencers and the companies that work with influencers are aware of the current legal framework and keep up to date with changes on a regular basis. As a lawyer and the author of this article, I strongly recommend that you regularly inform yourself about the current legal framework and, if necessary, seek legal advice. Only in this way can influencers and companies ensure that they adapt their business practices accordingly and minimize legal risks.

The question of whether more regulation is needed is also a trade-off between putting the brakes on new business models and protecting consumers. It is also a question of whether many of the regulations from France are not already regulated, for example, in the State Media Treaty. It is therefore likely that we will see further changes and adjustments in this area in the coming years.

Although there are currently still many ambiguities and challenges, one general trend can be identified: Influencer regulation is likely to be further tightened in the coming years to strengthen consumer protection and increase transparency in the digital advertising landscape. It remains to be seen what specific measures will be taken in this regard and how they will affect the practices of influencers and the companies that work with them.

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.