The Berlin Court of Appeal (Kammergericht) has decided to what extent influencers and bloggers must label their statements and contributions in the social media as advertising
Law Against Unfair Competition / Social Media
The applicant is a registered association for combating unfair competition. The applicant asserts claims for injunctive relief under competition law against the opposing party, a blogger and influencer, by way of injunction proceedings. The applicant claims that the blogger infringed the provisions of the Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb, UWG) regarding three Instagram posts because the blogger did commercial advertising without labelling it as advertising. The Berlin Regional Court (Landgericht Berlin) followed this view and issued an interim injunction against the defendant in its judgment of 24 May 2018, AZ 52 O 101/18. It prohibited the defendant from publishing the three posts in question without labelling it as advertising.
The defendant has appealed against this decision. Her appeal was unsuccessful regarding two of the Instagram posts and successful regarding one of the Instagram posts.
In its appeal judgment, the Berlin Court of Appeal (Kammergericht) ruled that not every link by an entrepreneurial influencer to product pages is to be regarded as advertising within the meaning of §5a (6) UWG. The Court of Appeal has clarified that with regard to the question of whether a link or content of an influencer constitutes advertising to be labelled as advertising, the specific content and the special circumstances of the individual case must always be considered. Statements that are ideological, scientifical, editorial or consumer-political and unrelated to the promotion of sales and purchases are not subject-matter of the Unfair Competition Act (UWG). The Appellate Court emphasizes that the result of its decision is in accordance with the current guidelines of the Media Authorities (Medienanstalten) “Werbeanzeigen in Social Media – Angeboten“of November 2018, see https://www.die-medienanstalten.de/fileadmin/user_upload/Rechtsgrundlagen/Richtlinien_Leitfaeden/Leitfaden_Medienanstalten_Werbekennzeichnung_Social_Media.pdf (German version) or https://www.die-medienanstalten.de/fileadmin/user_upload/Rechtsgrundlagen/Richtlinien_Leitfaeden/FAQ_Advertising_in_social_media_questions_and_answers.pdf(English version).
No further appeal is allowed against the judgment of the Court of Appeal.
In individual cases, the influencer must check carefully whether a statement, article or link is purely editorial, opinion-forming and informative. It should always be in mind that even without concrete consideration, the set of a link to product pages can be regarded as advertising requiring labelling. A contribution in connection with a consideration is in any case advertising subject to labelling in the sense of the UWG.
Relevant decisions (in German):
– KG, 08.01.2019 – 5 U 83/18, see https://www.kostenlose-urteile.de/Urteil26959
– Previous instance: Berlin Regional Court (Landgericht Berlin), 24.05.2018 – 52 O 101/18, see http://www.gerichtsentscheidungen.berlin-brandenburg.de/jportal/?quelle=jlink&docid=KORE510102018&psml=sammlung.psml&max=true&bs=10)