[co-author: Efe Kökel]
Social media platforms have become significantly more important in the field of online marketing in recent years and have caused controversial legal issues. The Federal Court of Justice (BGH) recently dealt with this in a series of decisions on influencer marketing and made specific requirements for labeling as advertising in social media posts. The Higher Regional Court of Frankfurt a. M. has now also decided on questions of advertising labeling on internet platforms (judgment of May 19, 2022 – Az.: 6 U 56/21) and followed the case law of the Federal Court of Justice in his decision. This evolving case law is likely to result in an increasingly precise legal framework that could benefit influencers and other stakeholders.
The plaintiff is the publisher of print and online magazines and offers paid advertising. The plaintiff also operates a user profile on the social media platform Instagram. The defendant is an influencer with a user profile on Instagram that reaches around half a million followers. The legal dispute was based on the defendant’s postings on Instagram, in which she presented an e-book package worth €1,300 on the subject of vegan nutrition, which the provider of the e-books had made available to her free of charge. The defendant did not receive any direct financial compensation. It linked the accounts of the providing company with so-called “tap tags” without making this recognizable as advertising. The District Court of Frankfurt a. M. (LG Frankfurt a. M.) sentenced the defendant to omission of the content in question. The defendant’s appeal was dismissed by the Higher Regional Court of Frankfurt a. M. (OLG Frankfurt am Main).
The OLG Frankfurt a. M. confirmed the judgment of the LG Frankfurt a. M
First, it rejected the defendant’s objection that the plaintiff’s claims for injunctive relief were abusive within the meaning of Section 8c (2) UWG. With regard to the amount in dispute asserted in the warnings of the plaintiffs (100,000 €), the court emphasized in particular that this amount was not disproportionate due to the economic importance of the wide-ranging activities of influencers.
In addition, the court assumed a commercial transaction in favor of the defendant and the third-party company that had delivered the e-books to the defendant. The Higher Regional Court justified its presumption of commercial action in favor of the third-party company by stating that the contribution was to be classified as a “prototypical case of advertising excess” since it did not discuss the product in terms of content. The reference to the new price of the products and a discount also indicated “classic product advertising”.
The court assessed the application of the third-party company by post as an unfair business transaction in accordance with Section 5a (6) UWG (which has now been regulated in the new version of Section 5a (4) sentence 1 UWG since May 2022). . The court ruled that the average consumer could not recognize the business connection between the defendant and the third-party company, since the defendant had not sufficiently clarified such a connection in its contribution and thus violated Section 6 Paragraph 1 No. 1 BGB. 1 TMG Telemedia Act (TMG) and § 22 paragraph 1 sentence 1 Media State Treaty (MStV). However, the court ruled that there was no unfair competition in the defendant’s posting, insofar as it advertised its own company, since the visitor to the account could see that the defendant was posting the products in order to enhance its own image as an influencer and thus for commercial purposes work.
The Higher Regional Court based its assessment of the commercial transaction and the question of unfair competition on the recent case law of the Federal Court of Justice on influencer marketing (see our article on the influencer case law of the Federal Court of Justice). After a long period of legal uncertainty, a uniform case law seems to have emerged in the area of influencer and social media marketing, which is intended to provide more security for everyone involved.
At the same time, we will monitor developments closely, because it remains to be seen whether and to what extent the new version of Section 5a (4) UWG that recently came into force will have an impact on this business area. This regulation now contains a provision on commercial communications and a rebuttable presumption to the detriment of the person acting in the course of his business.