Social media platforms have gained appreciable significance in the sphere of on-line advertising and marketing in latest years and induced controversial authorized questions. The German Federal Court of Justice (BGH) lately handled these in a collection of choices on influencer advertising and marketing and established exact necessities on labelling as advertising in social media posts. The Higher District Court of Frankfurt a. M. has now additionally dominated on advertising labelling points on Internet platforms (judgment of 19 May 2022 – case no.: 6 U 56/21) and adopted the BGH case legislation in its judgment. This evolving case legislation will probably result in an more and more exact authorized framework that would profit influencers and different events concerned.
Facts
The plaintiff is a writer of print and on-line magazines, providing advertising towards cost. The plaintiff additionally operates a consumer profile on the social media platform Instagram. The defendant is an influencer with a consumer profile on Instagram reaching roughly half 1,000,000 followers. The grounds for the dispute had been posts by the defendant on Instagram in which she offered a bundle of e-books price € 1,300 coping with vegan diet and having been made out there to her freed from cost by the supplier of the e-books. The defendant didn’t obtain any direct monetary remuneration. She linked the accounts of the offering firm with so-called “faucet tags” with out making this recognizable as advertising. The District Court of Frankfurt a. M. (LG Frankfurt a. M.) ordered the defendant to stop and desist from posting the contents in query. The enchantment of the defendant was rejected by the Higher District Court of Frankfurt a. M. (OLG Frankfurt a. M.).
Decision
The OLG Frankfurt a. M. upheld the judgment of the LG Frankfurt a. M.
First, it rejected the defendant’s objection that the plaintiff’s cease-and-desist claims had been abusive underneath Section 8c (2) of the German Unfair Competition Act (UWG). Regarding the quantity of the worth in dispute claimed in the plaintiff’s warning letters (€ 100,000), the court docket significantly emphasised that this quantity was not disproportionate because of the financial significance of the exercise of influencers with a large attain.
In addition, the court docket assumed a business act in favor of the defendant and the third-party firm which had offered the e-books to the defendant. The OLG justified its assumption that there was a business act in favor of the third-party firm by stating that the submit needed to be categorized as a “prototypical case of advertising extra”, as it didn’t include any content-related dialogue of the merchandise. The reference to the unique value of the merchandise and to a reduction additionally indicated “traditional product advertising”.
The court docket thought-about the promotion of the third-party firm by the submit to be an unfair business act pursuant to Section 5a (6) UWG (which is now since May 2022 regulated in the brand new model of Section 5a (4) sentence 1 UWG). The court docket dominated that the typical client was not in a position to acknowledge the business connection between the defendant and the third-party firm, as the defendant didn’t sufficiently make clear such a connection in its submit and due to this fact violated part 6 (1) no. 1 TMG of the German Telemedia Act (TMG) as effectively as part 22 (1) sentence 1 of the German State Media Treaty (MStV). However, the court docket dominated that there was no unfair competitors in the defendant’s submit insofar as she promoted her personal firm, because the customer of the account would be capable of acknowledge that the defendant posted the merchandise to extend the worth of her personal picture in her work as an influencer and thus for business functions.
Conclusion
The OLG based mostly its evaluation concerning the business act as effectively as the query of unfair competitors on the latest case legislation of the BGH on influencer advertising and marketing (see our article on the Influencer case legislation of the BGH). After an extended interval of authorized uncertainty, a uniform case legislation seems to have developed in the sphere of influencer and social media advertising and marketing, which ought to present extra certainty for all events concerned.
At the identical time we will probably be monitoring developments carefully as it stays to be seen whether or not and to what extent the brand new model of Section 5a (4) UWG, which lately got here into drive, will have an effect on this enterprise area. This regulation now accommodates a provision on business communication as effectively as a rebuttable presumption to the detriment of the individual appearing in the course of its enterprise.
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