The labeling obligation of influencers
Recently, there were some decisions on prominent influencers on marketing via Insta, including the KG=OLG Berlin, LG Munich and LG Karlsruhe.
The case law is currently still forming on the labeling obligation of influencers; last year, it had to be assumed that any linking and tagging of products in the posting must be considered advertising and thus labeled solely due to the assumed sales-promoting effect, otherwise there was a threat of a warning for misleading by omission.
[It is also unfair who does not make the commercial purpose of a business act known, if this does not result directly from the circumstances, and the non-disclosure is suitable to induce the consumer to make a business decision, which he would not have made otherwise, see § 5a para. 6 UWG].
Since the last decisions, this no longer applies; there is more differentiation and argumentation as to why a certain post is classified as advertising and then has to be labeled as advertising / advertisement. The interim labeling mania has certainly not led to more transparency with regard to the desired separation of editorial contributions and advertising, which certainly also the judges had in mind in the more recent decisions.
The post may not be paid, however, in principle (also no free product transfer or conditions to be fulfilled) and must be “editorial”, i.e. opinion-forming and or informative. This is the case if there is a relationship between the product and the contribution. However, this may not be in the form of praise, product recommendation, etc., so the KG Berlin.
The LG Munich, on the other hand, focuses more on the specific addressees of the influencer, who, depending on the target group, (must) know that many posts are advertising, so that a labeling obligation does not exist, at least not if there has been no money for the posts.
At this point, it is important to note that there are different criteria and many different constellations, so that everything -as so often in the legal assessment- requires a consideration of the individual case.
This applies in any case until a decision is issued by the Federal Court of Justice.