An influencer may not post pictures of herself on her Instagram account in the course of business in which she presents goods and links to the manufacturer’s accounts without identifying this as advertising. This was decided by the 2nd Civil Senate of the Higher Regional Court of Braunschweig on May 13, 2020 (2 U 78/19).
The influencer was active on the social media platform Instagram and regularly published pictures and short video sequences on sports exercises as well as fitness and nutrition tips. When users clicked on the images, the names and brands of the manufacturers of the clothing worn by the defendant appeared. With a further click, users were then directed to the manufacturers’ Instagram pages.
According to the 2nd Civil Senate, this was inadmissible advertising. By posting the images and linking them to the names and accounts of the manufacturers, the influencer was acting for commercial purposes. She was not operating the Instagram account privately, but also for the benefit of image cultivation and to build up her own brand and her company. The fact that she did not receive any material consideration for certain advertising was not the only decisive factor here. The expectation of arousing the interest of third-party companies in influencer marketing and generating sales in this way is sufficient. After all, the defendant describes itself as an influencer. These are usually well-known and popular people who are paid to be depicted with a certain product. The fact that her posts on Instagram offered no editorial reason for the images and the naming of the manufacturer also spoke in favor of commercial activity.
Because the influencer had not made the commercial purpose of her actions clear, the advertising was inadmissible. Consumers could not have immediately recognized from the circumstances that it was advertising. According to the 2nd Civil Senate, it is precisely in the nature of an influencer post that an apparently private and objective recommendation is made, to which the followers would attach greater importance than a labeled advertisement.
The judgment is not yet final.
(OLG Braunschweig, decision of May 13, 2020; Ref.: 2 U 78/19; PM of May 29, 2020).