Facts
The plaintiff, a contest affiliation, first despatched a warning letter to the defendant influencer in July 2018 as a result of she had tagged corporations in pictures on Instagram with out labeling the posts as promoting. As quickly as one clicked on the pictures, the names of the businesses manufacturing the equipment and clothes worn by the influencer, marked by means of faucet tags, turned seen. When clicking on the faucet tags, the consumer was taken to the corporate’s profile web page. As a outcome of the warning letter, the influencer conceded a cease-and-desist declaration to the plaintiff.
In October 2019, three new posts have been printed on the Instagram account of the identical influencer, once more marked with corresponding faucet tags. In half, the linked merchandise had been given to the influencer free of cost; partially, the influencer had bought the merchandise utilizing her personal funds.In the opinion of the plaintiff, this constituted a breach of the influencer’s signed cease-and-desist declaration. The plaintiff subsequently demanded fee of a contractual penalty and the signing of an additional cease-and-desist declaration. However, the influencer solely partially complied. The plaintiff then filed a grievance with the Cologne District Court. Both the Cologne District Court in addition to the Higher District Court of Cologne, because the enchantment occasion, granted the plaintiff’s claims.
Decision
In abstract, the BGH to a big extent confirms the choice of the Appeal Court.First, the BGH repeats the ideas deriving from its earlier influencer choices coming to the conclusion that, by the disputed Instagram posts, the influencer had acted in commerce each for the profit of her personal firm and for the profit of the third-party corporations (see our article on the choice).
In accordance with its opinion expressed within the earlier choices, the BGH differentiates between acts in favor of one’s personal firm and acts in favor of third-party corporations when assessing the unfairness of enterprise acts.
As a reminder, the BGH had dominated that Section 6 (1) No. 1 of the German Telemedia Act, Section 58 (1) Sentence 1 of the Broadcasting Treaty and Section 22 (1) Sentence 1 of the State Media Treaty, which every require a consideration for the existence of a “industrial communication” or “promoting”, would restrict the scope of utility of the final unfair competitors provision of Section 5a (6) of the Act towards Unfair Competition as sector-specific particular provisions. If there was no consideration, a violation of Section 5a (6) of the Act towards Unfair Competition couldn’t be thought-about (see our article on influencer case regulation).
In accordance with this case regulation, an infringement of Section 5a (6) of the Act towards Unfair Competition must be rejected additionally within the current case with regard to these merchandise bought by the influencer herself from the corporate.
However, this must be assessed differently with regard to these merchandise having been provided to the influencer free of cost, which should to be considered a “consideration” inside the that means of Section 6 (1) no. 1 1 of the German Telemedia Act, Section 58 (1) sentence 1 of the Broadcasting Treaty and Section 22 (1) sentence 1 of the State Media Treaty. The function of these particular provisions, i.e. to stop hidden promoting, is barely achieved if each financial benefit – within the current case additionally merchandise free of cost – is known as a consideration. Providing merchandise for free had been the one trigger for publishing the Instagram posts in query, which was additionally the intention of the businesses. Moreover, the exact worth of the merchandise provided for free is just not related, at least quantity in phrases of worth doesn’t exist.
Conclusion
By this ruling, the BGH has additional consolidated its maturing case regulation on the subject of influencer and social media advertising. Even if the choice doesn’t come as an amazing shock, the clarification that the promoting of merchandise provided free of cost may also represent a industrial communication or promoting, which is topic to labeling necessities, supplies extra authorized certainty in observe. By this ruling, the BGH can also be in keeping with the CJEU. The latter lately dominated {that a} publication inside the that means of No. 11 p. 1 of Annex I of Directive 2005/29 is “paid” if a consideration of financial worth is provided. This is the case not solely with the fee of an quantity of cash, but additionally with another kind of profit, provided there’s a clear connection between the profit granted and a publication.
https://www.jdsupra.com/legalnews/german-federal-court-of-justice-on-1928148/
