The legal discussion around influencer marketing, especially in Germany, is dominated by the question of correct labeling. But other legally relevant aspects are often neglected.
The omnipresent questions as to whether and how influencer posts should be labeled have not been conclusively clarified despite numerous court rulings in Germany. This is due in particular to the fact that courts of instance take different positions and that the Federal Court of Justice has not (yet) ruled on the matter.
From a practical point of view, until clarified, labeling as "Werbung" (“advertisement”) is recommended for Germany whenever remuneration has been paid to the influencer. "Remuneration" is not limited to monetary payments alone, but covers every monetary advantage, including product samples. Whether advertising exists if no payment has been made but a link is made to a manufacturer is ultimately to be assessed on a case-by-case basis. If the influencer provides his followers with an informational added value, there should be no advertising. If, however, the influencer only attracts attention for products of the linked manufacturer, an advertising measure is accepted. In practice, this differentiation will be difficult to make, so that in case of doubt, appropriate labeling is advisable.
The question as to how this marking is to be carried out has meanwhile been further substantiated in Germany by numerous judgments. Designations such as "#ad" or "sponsored by" are not sufficient in Germany. In order to effectively prevent warnings, a clearly visible label with "#Werbung" or "#Anzeige" should therefore be chosen for German-speaking viewers. It should also be noted that such a labeling obligation also applies in so-called story posts.
In other countries, of course, a label must also be chosen that is good and easy for the consumer to understand. Usually the labeling will therefore have to be in the respective national language.
In the USA, the U.S. Federal Trade Commission ("FTC") published a guideline for influencers ("Disclosure 101") on November 5, 2019. According to this guideline, the relationship to brands mentioned in the post must be clearly and comprehensibly disclosed. Accordingly, a reference should also exist if contributions are likened or shared by the influencer or brands or products are linked. In the opinion of the FTI, the contribution should also be labeled as an advertisement. Hashtags such as "#Ad", "#Sponsored" or "BrandAmbassador" are sufficient here. However, as in Germany, it must be ensured that such hashtags are not hidden in a hashtag blizzard. In such a case the indication would not be sufficiently perceptible.
In the UK, too, so-called advertising standards have been officially published which, similar to the German and American guidelines, contain information on the correct use of social media. According to these standards, posts must not deceive consumers. Any violations can even be a criminal offence. Also in the UK the labeling with "#ad" in a prominent place shall be sufficient according to the guidelines.
In addition to the question of correct labeling, the fact that special labeling regulations must also be observed, especially in the food and fashion sectors, is also important. If, for example, health claims (detox) or nutrition claims (light) are used without the advertised product fulfilling the legal requirements, this is not permitted.
In Germany, for example, the advertising company can be held liable for such advertising measures in addition to the influencer. The regional court Münster (Urt. v. 15.12.2017 (Az. 022 O 56/17)) decided that a hotel operator might be liable for a wrong star classification in a tourism portal on the Internet, even if the portal operator caused the error. This decision can have far-reaching consequences, as it applies generally applicable legal principles. The judges affirmed liability even if the manufacturer has no influence on the content of the advertising message.
Due to this far-reaching liability risk, companies should ensure that cooperation with influencers is always carried out on the basis of a contract that clearly regulates mutual rights and obligations. If one renounces such a contract, one puts-exaggeratedly formulated-the own advertising appearance into the hands of a teenager with a webcam and a connection to the Internet.
The subject of such a contract should first be a clear definition of the services to be provided by the parties. It should be regulated how many posts are to be posted via which channels and at what time. Furthermore, the advertising entrepreneur should be informed afterwards about the scope of the advertising message in order to be able to judge the success of the advertising measure. Of course, the advertising company should always have the right granted to it that posts only appear after final approval and that the influencer should be given corresponding binding labeling requirements.
If the planning of a marketing campaign takes place before the actual product release, the regulations on secrecy according to the European Know-How Directive should also be observed.
In international campaigns, it is also important to bear in mind that there are different requirements in the individual countries for the labeling of posts, all of which must be observed in order to avoid complaints by the respective national authorities or institutions.
Dr. Christian Böhler is associate at the international law firm Squire Patton Boggs. From the Frankfurt office, he advises and represents national and international clients in trademark matters, the development of trademarks, the labeling of products, distribution issues and all related legal disputes. Dr. Christian Böhler specializes in intellectual property (IP), competition and food law with a special focus on the consumer goods industry.