On June 8, 2017, the Media Council of the Hamburg / Schleswig-Holstein Media Authority imposed a fine totalling €10,500 on the well-known YouTuber “Flying Uwe”.
Despite several reminders from the media authority, he had failed to label three of his YouTube videos as permanent commercials.
YouTuber Flying Uwe does not label his videos as promotional videos
By not labeling his videos, Flying Uwe violates § 58 para.
3 i.V.m. § 7 Abs.
5 of the Interstate Broadcasting Treaty (RStV).
According to this, the legal regulations on labeling as “permanent advertising” also apply to social media providers that produce television-like content.
According to this, the YouTuber “Flying Uwe” should have clearly labeled his videos as commercials at the beginning and also provided a small notice in the image during the videos.
However, he repeatedly failed to do this.
No exceptions for YouTubers
The imposition of the fine is a clear signal from the media authority.
From now on, YouTubers – who produce television-like content – will also be subject to the provisions of the RStV.
The lack of advertising labeling is no longer an unclear legal grey area, but a clear violation of the legal regulations.
Such an infringement can not only lead to very high fines, but also to cost-intensive warnings from competitors or consumer protection associations.
Like Facebook, Instragram, Snapchat and WhatsApp, YouTube is a social media platform.
Accordingly, Sections 58 and 7 RStV also apply to videos published on YouTube.
Accordingly, advertising must be clearly delineated and clearly recognizable for the consumer.
Product placements on YouTube must be clearly identified
If the YouTuber receives products as gifts from various companies and places them in his videos in a promotional and praising manner, he must also label this as advertising.
He does not have to label videos in which he simply shows, describes and tests the products because he is convinced of the products himself.
Only the intention to promote product sales or an incentive by the advertised company turns a simple review into advertising.
This advertising must then be labeled if it is not already clearly recognizable as advertising for the consumer.
But what does such a labeling obligation for YouTubers actually look like?
“Die Medienanstalten” have published a short summary to answer this question, which YouTubers and other social media influencers can use as a guide.
No labeling requirement for own purchase
In principle, there is no obligation to label a product if you buy it yourself.
However, it is not enough to claim that you purchased the product yourself at the beginning of the video.
There may well be cases in which the responsible media authority will ask more detailed questions and demand proof of own purchase.
Partial labeling obligation for products provided free of charge
The situation is different if the product was provided free of charge.
Of course, no manufacturer gives out free products without expecting something in return.
This often consists of a positive review within a video.
However, if the manufacturer has not expressly given any instructions on how the product should be presented, there is actually no obligation to label it as advertising.
The presentation only becomes advertising if the manufacturer or company expects a positive evaluation or the video serves to promote sales.
In such a case, the video must be labeled with the slogan “Advertising”.
However, it may also be sufficient to display the words “supported by product XY” at the beginning of the video and to refer verbally to the product support.
However, if the video is exclusively about the product shown, it must be clearly labeled as “permanent advertising” or “advertising video“.
If the products provided and shown are embedded in a plot or story, it depends on the value of the product.
If the value is less than €1,000, there is no labeling requirement.
If the value is higher, this video must also be labeled with the words “product placement” and precise details.
Consideration from the manufacturer or company – Strict labeling obligation
If the YouTuber not only receives the product for free, but also a certain consideration, the labeling requirements are even stricter.
If the product is the focus of the video for a short time, labeling as product placement is required.
If the entire video focuses on the product, it must be labeled as “permanent advertising” or “advertising video“.
If, on the other hand, the focus of the video is again on editorial content, i.e. a short story in which the product is only shown in passing, a simple labeling as product placement is again sufficient.
Form of the labeling obligation often depends on the individual case
As a result, the issue of advertising labeling is complex and always depends on the individual case, so a certain amount of sensitivity is required when making an assessment.
If you are unclear about the degree of advertising, a stronger form of labeling should be chosen.
However, if anything is unclear, it is still advisable to consult an expert.
Labeling as advertising must also be visible in the videos
For all YouTube video labels, it is important that the label is not only visible in the description of the video.
The labeling must also appear in the video itself.
The reason for this is that only a very small number of consumers also read the video description.
However, since Sections 58, 7 RStV and the UWG regulations are consumer protection regulations, the label must be placed where it is recognizable to everyone.
Flying Uwe announces appeal against the fine notice
However, Flying Uwe has announced in one of his new videos that he will appeal against the fine of €10,500.
Among other things, he considers the amount of the fine for one video (€3,500) to be disproportionately high.
After all, he only earned around €100 per video.
However, it should be noted that this is not about his own revenue from the YouTube videos.
Rather, it is about the possible additional income from the advertising effect.