Guiding principles

1. an Instagram post in which tags embedded in the photo are linked to brand manufacturer pages constitutes a commercial act within the meaning of Section 2 para. 1 No. 1 UWG. By doing so, the operator of the account – usually an influencer – promotes the advertised companies as well as his own company, which aims to generate advertising revenue.

2. the labeling of such an Instagram presence as advertising is not dispensable. In particular, the advertising character is not obvious to all – often young, sometimes childlike – users. This is all the more true as it is the business model of influencers to mix (seemingly) private posts with commercial posts.

Tenor

1. the defendant is ordered to cease and desist, subject to the imposition of a fine of up to EUR 250,000.00 for each case of non-compliance, or imprisonment for up to six months,

to present commercial content in the course of business on social media, for example on the social medium Instagram, using the image of a person (designation „…“) without indicating the commercial purpose of the publication, unless it is directly apparent from the circumstances,

by doing so, such as by publishing contributions

– with the image of a person („…“) = 1st view

– after calling up the 1st view by clicking on the image: Display the name of one or more companies on the same page =

2nd view

– by another click on such a company name: Display the account of the clicked company on a new page that opens = 3rd view

in each case as shown in Annexes K4a-c, K5a-c, K6a-c.

2. the defendant is ordered to pay the plaintiff EUR 178.50 plus interest in the amount of 5 percentage points above the base interest rate since July 6, 2018

3. order the defendant to pay the costs.

4. the judgment is in no. 1. against security in the amount of EUR 10,000.00, in no. 2. and 3. against security amounting to 110% of the amount to be enforced in each case.

Facts of the case

1
The plaintiff is a registered association whose statutory duties include safeguarding the commercial interests of its members, in particular ensuring that the rules of fair competition are observed.
2
The defendant is active as an influencer on Instagram, where she maintains a business account. She has over 4 million followers (subscribers) there and publishes (posts) several hundred pictures of herself per year, often with short accompanying texts. In them, she deals with fashion, fitness, nutrition and lifestyle topics. Some of her posts include references to the manufacturers of the clothes she is wearing or other items that can be seen in the picture. Some of these references are in the form of hashtags in the accompanying text, while others – the subject of the dispute here – are integrated into the image as „tap tags“, i.e. as clickable signs. They only become recognizable once the image has been clicked on. If you then click on such a tag, you are taken to the Instagram account of the manufacturer or provider. Other such tags occasionally refer to the defendant’s manager or her mother.
3
In the three posts at issue, the defendant
4
a) seen on 14.12.2017 in front of a hotel in Paris; the tags refer to the trademark accounts „…“, „…“ and „…“ (K4a-c);
5
b) on 13.01.2018 above Ischgl in the snow; the tags refer to the brand accounts „…“, „…“ and „…“ and the accompanying text contains – in addition to comments on the weather – a recommendation for a hotel in Ischgl (K5a-c);
6
c) on 04.03.2018 in a commercial hall; the tag refers to „.“, while the text deals with the meaning and value of failure (K6a-c).
7
There was no indication that the posts in dispute were advertising. In the meantime, the defendant labels such posts for which it receives a fee as „paid partnership with…“. It has removed the brand tags and the hotel recommendation from the three posts in question.
8
The plaintiff argues that a significant number of its members are in competition with the defendant for advertising orders. The three posts at issue are inadmissible disguised advertising pursuant to Section 5a para. § Section 5a para. 6 UWG. In addition, the defendant violated, inter alia, § 6 para. 1 No. 1 TMG. The defendant gives the impression of being privately active, whereas in reality it is commercial advertising. It must make this clear.
9
The plaintiff requests:
10
The defendant is ordered to refrain, on pain of a fine of up to EUR 250,000.00 to be imposed for each case of non-compliance, or imprisonment for up to six months, from using
11
in the course of business in social media, for example in the social medium Instagram, to present commercial content under the image of a person (designation „..“) without indicating the commercial purpose of the publication, unless it is directly apparent from the circumstances,
12
by doing so as by publishing posts
13
with the image of a person („…“) = 1st view

after calling up the 1st view by clicking on the name of one or more companies on the same page = 2nd view

by another click of the display of the account of the company whose name came into the picture in the 2nd view came into the picture = 3rd view
14
in each case insofar as this is done as shown in Annex K3 to K6c.
15
The defendant is ordered to pay the plaintiff EUR 178.50 plus interest at a rate of 5 percentage points above the base interest rate since service of the action.
16
The defendant requests
17
that the action be dismissed.
18
The defendant disputes the plaintiff’s standing to sue and also argues that it uses its Instagram account primarily for commercial purposes; this is readily apparent to users. The tap tags do not constitute a commercial act, rather the user decides whether to click on the image or the tags. They also referred to companies with which the defendant had no paid cooperation. The links to the respective companies served to prevent frequent questions from their followers about the origin of the depicted objects. The defendant does not consider itself obliged to label every post as advertising due to its right to freedom of expression. Influencers from other European countries, such as Italy, do not label their posts accordingly either.
19
Reference is also made to the written submissions, the annexes and the minutes of the hearing of 24.01.2019.

Reasons for the decision

20
The action is admissible and well-founded.
I.
21
The action is admissible.
22
1. The applications made are sufficiently specific within the meaning of Section 253 para. 2 no. 2 ZPO. A prohibition request aimed at prohibiting the specific form of infringement satisfies the requirement of certainty (see BGH, GRUR 2014, 398 para. 17 – Online insurance brokerage). With the phrase „in each case insofar as this occurs as…“ and the reference to the listed annexes, the plaintiff has used the usual wording, which is intended to express that the application for injunctive relief is aimed at the specific form of infringement.
23
Slight rewording in the operative part compared to the application no. 1., as most recently submitted by the plaintiff, in the description of the „1st and 2nd view“ are only made for ease of understanding. In order to avoid misunderstandings, the court has also removed the reference to Annex K3, as this annex only contains a summary of Annexes K4a to K6c plus the – unobjectionable – imprint of the defendant and is therefore dispensable.
24
2. The plaintiff is entitled to bring an action pursuant to Section 8 para. 3 No. 2 UWG. It includes a considerable number of traders who are competitors of the defendant. The publishers cited by the plaintiff also compete for advertising material from companies that advertise with the help of the defendant.
25
a. For a competitor relationship to exist, it is sufficient that member companies of the plaintiff have to fear at least a not entirely insignificant impairment by the actions of the defendant with a certain, albeit only low probability (BGH, GRUR 2006, 778 para. 19 – Sammelmitgliedschaft IV; BGH, GRUR 2007, 610 para. 17 – Sammelmitgliedschaft V; BGH, GRUR 2007, 809 para. 14 – Krankenhauswerbung).
26
This is the case here. Companies that advertise naturally select the advertising medium that they consider to be suitable for their advertising purpose as part of an overall consideration of all relevant parameters. In the case of advertising via influencers, the consideration includes not only the target group in the new media sector with a specific, health and fashion-conscious clientele, but also the interesting presentation of the product in the transitional area between the commercial and private sectors. Conversely, advertising via influencers may be less in demand to the extent that the private impression of the presentation of the goods is impaired – for example by the obligation to label it as advertising (see Heilbronn Regional Court, judgment of 8 May 2018 – 21 O 14/18 KfH -, juris para. 45). As the articles submitted by the plaintiff from Spiegel Online (K36), the German Advertising Industry Association (K39) and the German Digital Economy Association (K40) show, the emergence of influencer advertising in social media is leading to a considerable shift in advertising budgets away from traditional advertising media towards influencer advertising (cf. also Mallick/Weller, WRP 2018, 155, 156; Lettmann, GRUR 2018, 1206, 1207/1210).
27
The (analogous) objection of the defendant in the statement of 27.11.2018 that there cannot be a competitive relationship between print media and social media due to specific differences does not apply. In the past and today, advertising is placed in printed publications, but since the beginning of the internet, it has also been placed online. Limited advertising media can only ever be issued once.
28
b. The assessment of whether there is a „significant number“ of competing member companies in the aforementioned sense is not based on a minimum number, but rather on whether the companies in question are represented in the relevant market in terms of number and/or size, market significance and economic weight in such a way that abusive action by the association can be ruled out (BGH, GRUR 2007, 610 para. 18 – Sammelmitgliedschaft V; BGH, GRUR 2007, 809 para. 15 – Krankenhauswerbung; Köhler/Bornkamm/Feddersen/Köhler/Feddersen, 37th ed. 2019, UWG Section 8 para. 3.42a).
29
By submitting its list of members (K41), substantiated by an affidavit (K42), the plaintiff has demonstrated with the evidentiary value required for the free evidence procedure (Teplitzky/Büch, Wettbewerbsrechtliche Ansprüche und Verfahren, 12th ed. 2019, ch. 13 para. 30g with further references) that 11 publishing houses, including B. and K. Verlag, and three advertising agencies belong to it. The printed works published by the two publishers mentioned include magazines distributed nationwide in which there is or can be advertising for manufacturers or products such as those advertised by the defendant, in particular clothing for younger people.
II.
30
The action is well-founded. The plaintiff is entitled to injunctive relief under Section 8 para. 1 sentence 1, para. 3 no. 2 i.V.m. § Section 2 para. 1 no. 1, no. 6, § 3, § 5a para. 6 UWG.
31
1. The posts in dispute are to be measured against the provision of Section 5a para. 6 UWG by analogy (Köhler/Bornkamm/Feddersen/Köhler, loc. cit., Section 5a para. 7.4, 7.9; Götting/Nordemann/Hasselblatt, UWG, 3rd edition 2016, Section 5a para. 207). The provision in No. 11 of the Annex to Section 3 para. 3 UWG is not applicable here because it does not concern editorial content (Ahrens, GRUR 2018, 1211, 1213; Gerecke, GRUR 2018, 153, 154). Recourse to the provision of Section 5 UWG is not necessary (see also Ohly/Sosnitza/Sosnitza, 7th ed. 2016, UWG Section 5a para. 89).
32
According to Section 5a para. 6 UWG, anyone who fails to disclose the commercial purpose of a commercial act is acting unfairly if this is not immediately apparent from the circumstances and the failure to disclose is likely to induce the consumer to take a transactional decision that he would not have taken otherwise.
33
Section 5a para. 6 UWG aims to protect the consumer from being misled as to the true, namely commercial, purpose of a commercial act. Anyone who engages in commercial advertising in such a way that commercial activity is no longer recognizable as such takes advantage of the fact that the public is more likely to believe the information provided by someone who is not involved in the competition itself (e.g. a magazine editor or a private individual) and judge it less critically, i.e. attach greater importance and attention to it than to corresponding information that is easily recognizable as advertising (BGH, GRUR 2013, 644 para. 15 – Preisrätselgewinnauslobung V; Köhler/Bornkamm/Feddersen/Köhler, loc. cit, § Section 5a para. 7.4). For this reason, some advertisers attempt to cloak their advertising message in an apparently objective and neutral guise (surreptitious advertising). This constitutes deception about the fact of the advertising nature of the statement (Götting/Nordemann/Hasselblatt, loc. cit., Section 5a para. 201).
34
The legal obligation arising from Section 5a para. 6 UWG does not cease to apply because foreign Instagram accounts may not have a corresponding advertising label, as the defendant has argued with regard to the posts of an Italian influencer. A possibly inadequate implementation of Union law or a lack of law enforcement in Italy cannot justify a violation of the law in Germany.
35
2. Whether a case of Section 5a para. 6 UWG is present can be assessed by the court itself on the basis of its own findings (see BGH, GRUR 2013, 644 para. 23 – Preisrätselgewinnauslobung V). The defendant’s Instagram posts are aimed at the general public. The question of the recognizability of advertising content must be answered on the basis of general life experience.
36
3. Accordingly, the posts mentioned are prohibited surreptitious advertising. The defendant must refrain from doing so. In accordance with the request, the wording of the judgment is not limited to Instagram, but to social media in general.
37
a. The defendant’s Instagram presence with the sequence of page views shown constitutes a commercial act.
38
According to the legal definition of Section 2 para. 1 No. 1 UWG means any conduct by a person for the benefit of his own or another person’s business before, during or after the conclusion of a transaction which is objectively connected with the promotion of the sale or purchase of goods or services or with the conclusion or performance of a contract for goods or services.
39
i. The defendant’s Instagram posts at issue initially serve to promote third-party companies. It is advertising that is intended to increase sales of the products presented and promote the image of the advertised manufacturer and its brand name. The defendant arouses interest in the brand and the products by presenting the products on her own body or in connection with her person. Getting to know the manufacturing company better and product sales are facilitated by the fact that interested parties are directed to the manufacturer’s Instagram account when they click on the linked tags. The fact that the defendant wants to avoid questions from followers (where did you get your dress?) does not contradict the business purpose pursued at the same time.
40
In her posts, the defendant presents herself as a person and „friend“, not as a „mere“ model. The emphatically private character of the posted photos and possibly the accompanying story (reference to the mother, vacation context, etc.) does not change the existence of a business activity. On the contrary: It is precisely the nature of influencer advertising that the influencer always works on his image and authenticity at the same time, for which he advertises the appropriate brands and articles, and „cultivates“ the circle of his followers, who appreciate his credibility and want to be part of the community of „their“ influencer (see Lehmann, WRP 2017, 772 f.; Mallick/Weller, WRP 2018, 155 ff.; Lettmann, GRUR 2018, 1206, 1209). The defendant is admired for its fitness and attractiveness, its access to luxury products and long-distance travel etc.. This makes its target group particularly receptive to the advertised brands and products.
41
ii. Due to these circumstances, the post of 04.03.2018 (Annex K6a) is also to be regarded as a commercial act. This post differs from the other two (Annexes K4a and K5a) in that it contains a very substantive text contribution in which the defendant deals with the meaning and value of failure. The photo shows her as a thoughtful young woman in a commercial hall. In contrast to Annex K5a, the text is not for advertising purposes.
42
Nevertheless, the defendant cannot claim that this post is merely an editorial contribution. This would only be the case if the post served solely, or at least primarily, to inform and shape the opinion of its addressees (BGH, GRUR 2012, 74 – Coaching-Newsletter, para. 15; BGH, GRUR 2016, 700 – Im Immobiliensumpf, para. 16). However, the tag „…“ and the contents of the Instagram account to which the link leads have no recognizable connection to the text and image contribution of the defendant. The setting of the tag has the effect of arousing the visitor’s curiosity and the expectation of being able to find out more by clicking on it. In other words, the tag serves to promote another company (see KG, judgment of 08.01.2019 – 5 U 83/18 -, juris para. 57 et seq.; see ibid. para. 102 et seq. for the distinction). The injunction only relates to this type of tagging, not to the rest of the post.
43
iii. The defendant also promotes its own company through its posts (see also KG, judgment of January 8, 2019 – 5 U 83/18 -, juris para. 54; LG Berlin, judgment of May 24, 2018 – 52 O 101/18 -, juris para. 31; Mallick/Weller, WRP 2018, 155, 157 f.). She logically maintains a business account for this on Instagram, as she confirmed at the hearing.
44
As an influencer, she generates income by marketing products while still appearing authentic. She stages her life with the appropriate brands. Companies are interested in the most credible advertising media possible for their advertising. The larger the number of followers, the more the defendant earns. The appealing design of its Instagram presence is synonymous with an increase in the value of the services it offers. This value is expressed in over 4 million followers as well as constant cooperation with a manager (whose account can also be reached via a tag) and an advertising agency (P. A. GmbH, see K3 page 1).
45
The defendant expressly admits the predominantly commercial purpose of its appearance. At the hearing, she specified that she is paid for – on an annual average – approx. 50% of her posts. This does not mean that the remaining posts are to be regarded as purely private. Influencers maintain the favor of their target group by frequently publishing private or seemingly private images and texts. If they „only“ advertise, they are putting their proximity to the community and their credibility – i.e. key assets of their company – at risk.
46
iv. The required objective connection with a promotion of the sale of goods within the meaning of Section 2 para. 1 No. 1 UWG is also given.
47
From an objective point of view, the act must be aimed at promoting sales or purchases by influencing the business decisions of consumers or other market participants (BGH, WRP 2013, 1183 para. 17, 18 – Standardisierte Mandatsbearbeitung; BGH, WRP 2015, 856 para. 22 – Bezugsquellen für Bachblüten; BGH, WRP 2016, 843 para. 12 – Im Immobiliensumpf). In principle, the subjective ideas of the person acting are not relevant (OLG Hamm, WRP 2017, 609 para. 22).
48
This connection is given here under two aspects.
49
(1) From an objective point of view, the placement of tap tags linked to manufacturer accounts is intended to at least indirectly promote the sale of goods by manufacturers (see LG Itzehoe, judgment of November 23, 2018 – 3 O 151/18 -, juris para. 39). Whether the specific product displayed by the defendant is (still) available there is irrelevant. An „objective connection“ also exists in the case of attention advertising (image advertising), which serves to make the name of the advertising company known to the public or to increase its public awareness and thus indirectly promote its sales (Köhler/Bornkamm/Feddersen/Köhler, loc. cit., Section 2 para. 50).
50
(2) Furthermore, the defendant cannot rely on being paid for only part of its posts. In the case of entrepreneurial posts within the meaning of Section 2 para. 1 No. 6 UWG, the question of gratuitousness does not arise from the outset (Köhler/Bornkamm/Feddersen/Köhler, loc. cit., Section 5a para. 7.71). The payment of the individual post (or the underlying trips or the advertised products) is not a suitable distinguishing feature between business and private activity, especially if – as in this case – the free post at least also pursues the purpose of promoting one’s own company. This is because it is in an indissoluble context with the paid advertising contributions (see Heilbronn Regional Court, judgment of May 8, 2018 – 21 O 14/18 KfH -, juris para. 48 et seqq.; see also KG, judgment of January 8, 2019 – 5 U 83/18 -, juris para. 112 et seqq.). If the posts not based on paid partnerships were purely private, the defendant would be free to open another private Instagram account. When asked by the chairman, she stated that she did not have such an account. In that case, however, it must be held to the principle of always appearing for business purposes as well.
51
In addition, the infringement of fair competition lies in the concealment of the advertising character. In this case, it does not matter whether the defendant has received remuneration for the posts in question when assessing whether a commercial act has occurred (see BGH, GRUR 1994, 821, 822 – Preisrätselgewinnauslobung I).
52
v. The defendant argues unsuccessfully against the legal qualification of its posts as commercial acts that the tags can only be seen by clicking on the photo, i.e. the viewer has to take action himself in order to access the described sequence of links. This argument is not convincing because not every user who clicks on the photo is looking for more detailed information about the items of clothing worn by the defendant etc.. They may also want to know whether a photographer or other persons or information is stored, as is often the case with Instagram. The conduct that the defendant must refrain from is the embedding of links to product provider pages in an advertising context without disclosing this context. The fact that the user must take action in order to ultimately reach the product provider page does not change this.
53
vi. Whether the defendant’s opinion that the contested tagging of photos with links to product provider pages does not constitute commercial communication is in line with Art. 2 lit. f of Directive 2000/31/EC (Directive on electronic commerce) (see Grabitz/Hilf/Marly, Das Recht der Europäischen Union, 40th ed. 2009, Art. 2 para. 29), does not need to be decided here. § Section 5a para. 6 UWG serves to implement a special provision in Art. 7 para. 2 UCPD (Unfair Commercial Practices Directive). The obligations pursuant to Art. 6 to 8 of Directive 2000/31/EC are therefore not relevant and their violation is not in dispute.
54
b. The defendant did not identify the commercial purpose of its commercial activity in its three posts. There is no reference to this either in, above or below the respective photo or in the accompanying text.
55
c. The special identification was also not dispensable. This is because the commercial purpose is not immediately apparent from the circumstances. To do so, it would have to be recognizable at first glance and without any doubt. On the other hand, it is not sufficient if the average reader only recognizes its advertising effect after an analytical reading of the post (BGH, GRUR 2013, 644 para. 21 – Preisrätselgewinnauslobung V; KG, WRP 2018, 224 para. 13; Köhler/Bornkamm/Feddersen/Köhler, loc.cit., Section 5a para. 7.80a). Applied to image posts on Instagram, this means that simply looking at the image must „catch the eye“ that it is advertising.
56
i. This is not the case with the images posted by the defendant. Their commercial purpose is not already obvious to users because everyone who goes to a post whose author has over 4 million subscribers knows that they are dealing with an influencer, or because free internet services are usually financed by advertising. A post is certainly not recognizable as advertising if it is professionally designed (OLG Celle, MMR 2017, 769 para. 17). Nor can Instagram’s General Terms and Conditions replace an advertising label on the specific post under any circumstances.
57
The defendant’s opinion to the contrary in this regard fails to recognize that a large number of users, but by no means all users, are aware of the advertising nature of influencers‘ appearances (Lettmann, GRUR 2018, 1206, 1210). It should be recalled that the defendant mixes private content with advertising content, thus deliberately reducing the recognizability of advertising.
58
ii. Furthermore, the court is unable to endorse the opinion of the Austrian Supreme Court (4 OB 60/16 A), which is cited by the defendant in the statement of 15.08.2018, p. 6 et seq. The fact that the average attentive reader today assumes that even editorial contributions are not „neutral“ because they come from journalists expressing their personal opinion does not mean that commercial statements with – as the Supreme Court ruling states – „promotional excess“ do not have to be labeled as advertising. Irrespective of this, the Supreme Court restricts its ruling to the case of unpaid contributions – i.e. not paid for by a third party – and thus remains within the framework of Section 26 of the Austrian Media Act. Nothing can be gained from this for the case in dispute here.
59
iii. Clear identification as advertising is also important because the defendant’s followers are often very young. At the hearing, it stated that the main user group was 16-24 year olds, but admitted that younger users are also represented. Instagram requires a minimum age of 12 years, but this is not always adhered to.
60
If the protection of particularly vulnerable consumers, especially children, is at issue, Section 3 para. 4 sentence 2 UWG applies, so that their capacity for cognition must be taken into account. Since children are less attentive and less literate than adults, the requirements for labeling as advertising must be significantly higher and suitable for children. It is true that net-savvy young Instagram users are practiced in using this and other social media. However, they read far less, devote only a short attention span to a post (often only a few seconds until the next click) and are generally easier to seduce (KG, WRP 2013, 638; LG Berlin, judgment of 24.05.2018 – 52 O 101/18 -, juris para. 33; Schonhofen/Detmering, WRP 2018, 1171, 1172).
61
d. It is up to the trader to decide how to identify the commercial purpose of his commercial act if this is not obvious. The circumstances of the individual case and the means of communication used are decisive (Köhler/Bornkamm/Feddersen/Köhler, loc. cit., Section 5a para. 7.27). The court is not called upon to decide on this question, as the subject of the dispute is only the absence of any kind of advertising labeling in three specific posts by the defendant. Finding ways out of the ban is the task of the infringer.
62
e. § Section 5a para. 6 UWG further requires that „the non-disclosure is likely to induce the consumer to take a transactional decision that he would not have taken otherwise“. This requirement is readily met (see KG, judgment of 08/01/2019 – 5 U 83/18 -, juris para. 73; OLG Celle, MMR 2017, 769 para. 19; KG, MMR 2018, 245 para. 14; OLG Braunschweig, decision of 08/01/2019 – 2 U 89/18 – submitted by the consumer).2019 – 2 U 89/18, submitted as Annex K43, p. 6).
63
The lack of labeling as advertising initially increases the likelihood that users will pay attention to the post at all because recognizable advertising tends to have a deterrent effect. If this attention leads to a click on the defendant’s photo, curiosity is further aroused and there is an incentive to visit the linked page to find out more. There, the user is exposed to the advertising of a third-party company, which is intended to induce him to purchase its products. Whether the specific product advertised is (still) available there is irrelevant, contrary to the opinion of the defendant. It is typical of modern advertising, in particular influencer advertising, that the brand and image of the manufacturer are advertised, which has the indirect effect of increasing sales (see KG, MMR 2019, 114; Ladeur, ZUM 1999, 672, 673; Schröder, note on KG, MMR 2018, 245).
64
This does not contradict the geo-targeting decision of the Federal Court of Justice (GRUR 2016, 1073 para. 34). According to this decision, visiting a website on which products or services can be ordered directly constitutes a business decision in the same way as entering a brick-and-mortar store. This wording does not allow the reverse conclusion that a business decision is not made if products or services cannot be ordered directly, but only after a further click, nor does it allow the conclusion that image and brand advertising is exempt from the requirements of Section 5a para. 6 UWG because it does not lead directly to the purchase of a product or service.
65
4. The prohibition imposed does not affect the defendant’s fundamental rights.
66
When interpreting national law which – as in this case – serves to implement directives of Union law, Article 51 para. 1 sentence 2 of the Charter of Fundamental Rights of the European Union (EU Charter of Fundamental Rights), the fundamental rights laid down therein must be observed and therefore, insofar as the freedom of expression and reporting is at issue, the provisions in Art. 11 para. 1 and 2 of the EU Charter of Fundamental Rights (BGH, GRUR 2012, 74 – Coaching-Newsletter, para. 19; BGH, GRUR 2016, 710 – Im Immobiliensumpf, para. 45).
67
The restriction of the defendant’s freedom of expression and media freedom on the basis of the Union law transposed into the UWG complies with the principle of proportionality (see KG, judgment of 8 January 2019 – 5 U 83/18 -, juris para. 82 et seq.). The defendant is not required to refrain from advertising, i.e. the content of its Instagram page, but only to label it. Likewise, the prohibition is not directed at text contributions such as the one contained in the post according to Annex K6a, for which the defendant can claim the protection of freedom of expression. It can also combine such texts with photos of itself in the future, as long as it does not embed a link to the manufacturer’s website – without any connection in terms of content (see above, 3. d) a. ii.).
68
Nothing else results from the AnyDVD decision of the Federal Court of Justice referred to by the defendant (GRUR 2011, 513; see BVerfG, NJW 2012, 1205). Even if Art. 11 EU Charter of Fundamental Rights (as well as Art. 5 para. 1 GG) protects the use of electronic references (links) in an online article as an expression of opinion if they are embedded in a typical press statement of an informational nature, the defendant cannot derive anything from this for the case in dispute. Such a statement of an informational nature is not the subject of the dispute. The tap tag in the post of 04.03.2018 (Annex K6a-c) also does not lead to a page whose content is related to the accompanying text of the photo. Furthermore, the obligation to label advertising was not the subject of the BGH’s decision.
69
5. The risk of repetition is to be assumed pursuant to Section 12 para. 2 UWG and has not been eliminated by the submission of a cease-and-desist declaration with penalty clause. It is true that the defendant has since removed the advertising tags from the posts at issue (which can still be accessed on Instagram) and uses the words „paid partnership with …“ for its paid posts (instead of stating the location above). (instead of stating the location above the photo). Whether this information is sufficient for legal reasons can be left open here. This is because the risk of repetition does not disappear by a mere, reversible change in practice.
70
6. Any claims on the basis of the Telemedia Act can be left aside.
71
7. Finally, the plaintiff is entitled to the asserted claim for the costs of the extrajudicial assertion pursuant to Section 12 para. 1 sentence 2 UWG. The defendant must pay statutory interest on this from the day following its rejection of the warning notice by letter of 5 April 2018.
72
8. The decision on the costs is based on Section 91 para. 1 ZPO, the decision on provisional enforceability is based on Section 709 ZPO.