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Influencer advertising: BGH creates clear rules

from
Elmar Kloss
Lawyer
Specialist lawyer for intellectual property law
Specialist lawyer for information technology law

Give me a call: 0261 - 404 99 45
E-Mail:

After years of sometimes exaggerated discussions about supposedly special regulations for influencer advertising, the Federal Court of Justice has now conclusively clarified:

Of course, what applies to all media initially applies to influencers.

In detail, this means:

1. Anyone who is paid directly for a presentation must point out that it is advertising. This is a recognized basic rule of advertising communication; otherwise, a violation would be understood everywhere as "surreptitious advertising".
2. Advertising is assumed when a product is highlighted so uncritically that it is obvious that it cannot be neutral information. This may sound difficult in the abstract, but in practice it is usually easy to determine.
   This is not new either; this standard has been applied to all media for decades. The sensible background to this is that it would be far too easy to circumvent direct payment and finance advertising by devious means.
3. "Tap tags" are allowed. This is because factual information about which product is involved is part of neutral reporting. It is therefore right that it makes no difference whether this information is provided in words or images or, as is typical for the medium, in a "tap tag".

The only thing that is actually new is the Federal Court of Justice's assessment:

An advertisement is also deemed to exist whenever a direct link is set to the manufacturer of the product.

In practice, this assessment by the Federal Court of Justice is understandable. This is because influencers are often paid for "measured" advertising success on a "pay per lead" basis.

Nevertheless, for digital natives, it seems a little strange that a post can become advertising through a link. In the modern internet, a post is considered valuable precisely when the sources are directly linked. This is something that children learn at school as "media literacy".

It is also legally doubtful whether the final result is already available on this point. For "classic" media, specifically Heise-Verlag, the Federal Constitutional Court ruled 10 years ago in the context of the so-called "AnyDVD proceedings": The use of links in a "press-typical statement with an informational character" is covered by the freedom of the press and the freedom of expression (1 BvR 1248/11 of December 15, 2011). So why should different standards apply to reporting through images?

It therefore remains to be seen whether influencer proceedings will go all the way to the Federal Constitutional Court.

In any case, the specific demands of the Federal Court of Justice are practical to work with for the time being.

BGH, judgments of September 9, 2021 - I ZR 90/20, I ZR 125/20, I ZR 126/20

The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.