The law firm activelaw has successfully defended itself on behalf of a management and marketing agency against a preliminary injunction issued by the Association of Social Competition e.V. (VSW) before the Cologne Regional Court (31 OR 88/21) had worked against them. With the order, the agency was prohibited from making posts by an influencer she supervised available on Instagram without advertising. This happened even though the agency was able to prove, by presenting appropriate invoices, that the influencer had bought the clothing herself. She had linked the individual items of clothing in her posts using so-called tap tags — clickable areas within the posted images that led to the respective retailer.
Promising appeal
The appeal filed by activelaw against the prohibition order was judged as promising by the Cologne Higher Regional Court at the hearing on 14.01.2022 (6 U 154/21). The Senate announced that it would follow the requirements of current BGH case law on the labeling of Instagram posts. The VSW then withdrew the request for a ruling. It remains to be seen whether he will also withdraw the so-called main action brought in the matter by activelaw in the meantime.
It is worth mentioning that the Cologne Regional Court in parallel proceedings against the influencer herself (31 OR 91/21) had rejected the VSW's application because the Federal Court of Justice has since published the reasons for its basic rulings. The VSW has filed an appeal against this, which has not yet been decided.
Attorney Dr. Sven Dierkes explains
It is gratifying that we succeeded in pushing the VSW within its limits before the Cologne Higher Regional Court. However, based on the “Influencer II” and “Influencer III” judgments (BGH judgments of 09.09.2021, I ZR 125/20 and 126/20), this was ultimately logical.
In its first key decisions on influencer marketing, the Federal Court of Justice made it clear that the decisive criterion for commercial communication in favor of third parties is consideration. If this has not been provided for the integration of products or setting tags, the existence of advertising cannot easily be assumed. In our opinion, this must apply in particular when tags are set to accounts of competing companies in the same post. Because it is out of touch with reality to assume that companies that have paid for posts would put up with this
The Federal Court of Justice has also found that influencers certainly promote their own company by publishing posts. However, this would not require labeling as (own) advertising if the user could easily recognize the commercial purpose. There would be various indications of this, such as account verification, the quality of published images or even the number of likes and followers.
Is a day at a location already advertising?
Notwithstanding this, many questions remain unanswered even after the first policy decisions made by the Federal Court of Justice. For example, it is unclear how far the concept of consideration must be drawn, whether indirect benefits are sufficient or whether — as in broadcasting — there can be a minor limit. This can be exciting not only when it comes to setting tags on stylists, photographers and locations. The statements made by the Federal Court of Justice from the hearing on case I ZR 35/21 of 13.01.2022 unfortunately suggest a very strict stance on the part of the Federal Court of Justice.
It also remains to be clarified which indications indicate an advertising surplus of posts regardless of tags — when, for example, there should be an excessive positive highlighting of displayed products — and whether — contrary to the wording of the explanatory memorandum of the amended Section 5a UWG — a confirmation from “adjourned” companies must be submitted in addition to the presentation of receipts in order to refute the suspicion of providing consideration.
Influencers should therefore not succumb to the fallacy of being able to set tags in any case if they have not been paid by the companies mentioned in the post. The evaluation of whether a post should be marked as advertising still requires close consideration on a case-by-case basis. The first key decisions of the Federal Court of Justice provide important clues in this regard. However, the decisions do not yet provide the desirable legal certainty for the labelling of communication on social media.
