Fashion blogger Scarlett Gartmann was ordered to cease and desist by the Regional Court of Hagen in a ruling dated September 13, 2017 (Ref.: 23 O 30/17). She posted photos with links to company websites on her Instagram page. However, she did not label these posts as advertising.
The Hagen Regional Court considered the Instagram posts to be inadmissible surreptitious advertising, which could also be warned on the basis of Section 5 para. 6 UWG was also capable of being warned. The blogger’s posts were commercial activities whose commercial nature had been concealed.
Fashion blog on Instagram not recognizable as advertising
The court considered the blogger’s Instagram page to be a fashion blog based on its external appearance. The aim of this blog was for the influencer to talk to her followers about the outfits she published. At first glance, it was not apparent that the main aim of the images was to advertise the products shown.
Their followers include not only adults, but also young people in particular, for whom advertising and non-commercial posts are difficult to distinguish. Furthermore, the characters such as @ or # did not make the promotional nature of the product names appear to be advertising. Unlike a company’s website, it is not directly recognizable on Instagram whether it is advertising or a private, non-commercial post.
“Detox” – injunctive relief for competition law infringements on Instagram
But it wasn’t just the lack of advertising labeling that was the blogger’s downfall. In one of her pictures, she was drinking from a drinks bottle with a straw. The post was labeled with the term “detox”, which is understood as “detoxification”. However, the drink was not proven to have any detoxifying effect. The court therefore also found the blogger in breach of the Health Claims Regulation (Art. 10 para. 1 HCVO).
The court mentioned that there is a certain trend to use the term “detox” to refer to all kinds of harmful substances. The term therefore often only describes a healthy lifestyle that is free from “toxic” influences in the figurative sense. Nevertheless, the majority of the post’s target group still assumes that “detox” in connection with a commercial product refers to the detoxifying effect.
Surreptitious advertising on Instagram: Missing labeling can be expensive
Surreptitious advertising or other breaches of competition law can – as the present case shows – quickly lead to legal proceedings and thus become quite expensive for the person concerned. However, before legal proceedings are initiated, the affected party is usually sent a warning letter with a pre-formulated cease-and-desist declaration, which is intended to keep the costs for the affected party relatively low.
Dealing with warnings correctly is important
If you have received such a warning letter, you should first keep calm and not sign the enclosed cease-and-desist declaration prematurely. Do not sign the enclosed cease-and-desist declaration too hastily. This is because these pre-formulated declarations often go too far and therefore lead to an infringement that is subject to a contractual penalty.
It is not uncommon for such contractual penalties to be in the region of several thousand euros. In order to escape this “trap”, it is advisable to have an expert look over the warning letter. In the best-case scenario, the grounds for the warning letter are inadequate or a modified cease-and-desist declaration can “clear up” the matter.
Instagram plans new function for advertising labeling
It is possible that such warnings will soon be a thing of the past. Instagram is planning a new form of advertising labeling. With the hashtag “#Paid Partnership with”, advertising will be more clearly labeled in the future. Instagram is also introducing a function that takes users directly to the brand’s website if they are interested.
Overall, the creators of Instagram have recognized that brands are very interested in the advertising power of Instagram. This is because companies can reach many users in a very short time at a low cost. To support this, advertising companies will be able to access the statistics of Instagram influencers in the future. This will allow companies to better adapt and optimize their advertising to the interests of Instagram users.