Guiding principles
- If a professional influencer publishes her own photo on her Instagram business account on which tap tags lead to the Instagram account of a third-party company, she is acting in a business capacity even if she does not receive any monetary payment from the third-party company.
- On the question of whether the commercial purpose of such a post, also to promote the commercial interests of the third party companies, is recognizable to the addressees at first glance and without any doubt (here denied if tap tags are also used to refer to accounts that do not pursue their own sales purposes vis-à-vis Instagram users).
Tenor
- The defendant’s appeal against the judgment of the Regional Court of Karlsruhe (Ref.: 13 0 38/18 KfH) of March 21, 2019 is dismissed.
- The defendant shall bear the costs of the appeal.
- This judgment and the judgment of the court of first instance are provisionally enforceable without the provision of security. The defendant may avert enforcement on account of the injunction by providing security in the amount of EUR 10,000.00 and on account of payment and costs by providing security in the amount of 110 percent of the amount enforceable on the basis of the judgment, unless the plaintiff provides security in the amount of EUR 10,000.00 prior to enforcement on account of the injunction and security in the amount of 110 percent of the amount to be enforced in each case prior to enforcement on account of payment and costs.
The appeal is allowed.
Reasons
I.
1
The parties are in dispute over claims under competition law to refrain from using so-called tap tags in posts on the defendant’s Instagram account.
2
The plaintiff is an association that has been registered since 19[…].
Its statutory duties include safeguarding the commercial interests of its members.
This also includes compliance with the regulations on fair competition.
The defendant maintains a business account on Instagram as an influencer.
3
Influencers are persons who are able to influence other users on social networks in their political, social and especially business decision-making (to influence someone).
This possibility arises if and because they appear attractive to other users as a result of their intensive activity on these media and the latter follow their activities in large numbers (so-called “followers”).
As a result of this self-created audience, influencers, particularly in the areas of fashion, beauty, nutrition, sport, technology and lifestyle, are potential advertising media par excellence (influencer marketing).
4
Instagram is an ad-financed online service that enables its users to present (“share”) photos and videos with each other.
The service can be accessed via the website “https://www.instagram.com/” and can also be downloaded as an application (“app”) by users of smartphones with the Android, iOS or Windows Phone operating systems.
Anyone can join the network by creating a profile free of charge.
To do so, they can choose to provide some information about themselves.
A profile photo can also be added.
Users can upload (“post”) photos and videos to their profile.
The individual contributions are referred to as “posts”.
Instagram offers its users the option of adding an accompanying text of up to 2,200 characters to a post, which appears under the photo or video.
5
Each member can decide whether to make their profile public or private.
If a user maintains a public profile, their posts are visible to everyone.
If, on the other hand, a user opts for a private profile, their posts are only visible to their “subscribers”: Instagram allows its members to find other user profiles using a search function.
When visiting another user’s account, it is possible to subscribe to the other user’s – public or private – account by clicking on the “Follow” button.
As a result, the account owner’s posts will appear on the personal start page after the user logs into the platform.
The owner of a private profile decides for themselves who can subscribe to their profile: If other users click the “Follow” button on their account, the account owner receives a subscription request, which they can accept or reject.
Public accounts can be subscribed to indefinitely.
6
The defendant publishes several hundred images per year on her account, on which she herself is depicted and which she often provides with short accompanying texts.
In her accompanying texts, the defendant deals with topics relating to fashion, nutrition, fitness and lifestyle. In addition, some of the defendant’s posts contain references to the manufacturers of the clothing she is wearing or other items that can be seen in the image.
Some of these references can be found as so-called hashtags in the accompanying text.
A hashtag is a keyword preceded by a double cross (#).
It is used in Instagram, as well as in other social networks such as Twitter or Facebook, to make posts with specific content findable within the network.
A hashtag can consist of any string of characters or numbers, but must not contain any punctuation or spaces.
By clicking on a hashtag, the user is shown an overview of posts that use the same hashtag in their accompanying texts.
7
In some cases, in particular in the posts at issue, the defendant has integrated the references to product manufacturers as so-called tap tags.
Tap tags are clickable areas of the image itself that only become visible when the image is clicked once and that contain links to other Instagram accounts.
If the user then clicks on a tap tag that has become visible, they are taken to the Instagram account of the manufacturer or provider of the linked products.
Other tap tags embedded by the defendant refer to the Instagram account of her manager or that of her mother.
8
The defendant maintains a public account on Instagram.
Around four million members have subscribed to her account.
This is a so-called business account.
Since 2016, Instagram has made it possible to convert the user profile into a business profile.
This is associated with an expansion of the functions.
For example, statistics on the reach of posts can be retrieved, in which the age, gender and locations of users interacting with the account can be evaluated.
In addition, the user of a business profile is able to post advertisements.
9
Instagram also enables further differentiation via the verification function: if a profile is verified, a blue tick appears next to the profile name, visible to every user.
The platform states the following on the page where users can request verification of their account: “A verification badge is a checkmark that appears next to the name of an Instagram account. It indicates that it is the real account of a public figure, celebrity or global brand or the company the brand represents. Submitting a verification request does not guarantee that your account will be verified.”
As part of the verification process, users must select a category in which they believe the account for which they are requesting verification falls.
In addition to the “Blogger/Influencer” category, the “News/Media” group and the “Government/Politics” group are also available.
This means that business accounts are always marked with a blue tick.
In addition, the accounts of prominent personalities such as singers or actors are also marked with a blue tick in the same way.
10
In the three posts at issue, the defendant
11
a) on 14.12.2017 in front of a hotel in [Ort] to see; the tags in this post refer to the brand accounts “[A .]”, “[B .]” and “[C .]” (AS LG K 4a-c);
12
b) on 13.01.2018 above [Ort] in the snow; the tags in this post refer to the brand accounts “[D .]”, “[B .]” and “[E .]”; the accompanying text contains comments on the weather and a recommendation for a hotel in [Ort] (AS LG K 5a-c);
13
c) on 04.03.2018 in a commercial hall; the tag on the post refers to “[F .]”, while the text deals with the meaning and value of failure (AS LG K 6a-c).
14
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 …”.
In the three posts mentioned, it has removed the brand tags and the hotel recommendation.
15
The plaintiff took the view that the tap tags in the posts mentioned constituted inadmissible disguised advertising pursuant to Section 5a para.
6 UWG.
They also violated Section 6 para.
1 No. 1 TMG.
The defendant gave the impression of being privately active, although it was actually advertising commercially.
It must make this clear.
For the followers of the defendant’s account, the defendant’s advertising activity is not readily recognizable.
On the contrary, the defendant had achieved its notoriety with images in which it presented itself as a private individual.
The followers, who are predominantly of a young age, cannot be expected to be aware of the business models of influencers.
16
The plaintiff has requested:
17
The defendant is ordered, on pain of a fine of up to EUR 250.000.00 for each case of infringement, or imprisonment for up to six months, to refrain from
18
presenting commercial content in the course of business in social media, for example in the social medium Instagram, with the image of a person (designation “[Benutzername der Beklagten bei Instagram]”), without making the commercial purpose of the publication clear, unless it is directly apparent from the circumstances,
19
by doing so as by publishing posts
20
with the image of a person (“[Benutzername der Beklagten bei Instagram]”) = 1. View
21
after calling up the
1st view by clicking on the display of the name of one or more companies on the same page
= 2nd view
22
by clicking again to display the account of the company whose name was displayed in the 2nd view
2nd view came into the picture
= 3rd view
23
in each case if this happens as shown in Annex K 3 to K 6c.
24
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 service of the action.
25
The defendant has requested that
26
the action be dismissed.
27
The defendant has taken the view that the plaintiff is not entitled to bring an action.
There is no competitive relationship in the strict sense between the publishers, who are members of the plaintiff, and the defendant.
From the consumer’s point of view, visiting Instagram pages such as the defendant’s is not interchangeable with reading newspapers and magazines.
28
Because the company names stored in tap tags are not displayed to every viewer of the image, but it is also necessary for the viewer to click on the image, a tap tag does not constitute a commercial act.
29
It is not disguised advertising because the high number of followers of the defendant’s Instagram account makes it clear to Instagram users that the defendant uses its account primarily for commercial purposes.
No reasonable user would assume that the defendant’s followers were exclusively people from her circle of friends and family.
This alone means that there is no need to label an image separately as an advertisement or display.
30
Furthermore, tap tags are spatially separated from the editorial part of the post.
Finally, the defendant’s tap tags do not induce the consumer to make a commercial decision that he would not have made otherwise.
The Instagram account of the companies to which the consumer is redirected by clicking on the corresponding tap tag does not make it possible to purchase the products depicted in the defendant’s post.
To do so, the consumer would have to carry out further research and find other websites of the company.
31
The Regional Court upheld the action in its entirety and ordered the defendant to refrain from using the links in the form of tap tags described in more detail in the application, subject to the imposition of a fine of up to EUR 250,000.00 for each case of infringement.
32
The defendant contests this with its appeal:
33
It argues – repeating and expanding on its arguments at first instance – that the Regional Court failed to recognize that the plaintiff had no standing to bring an action, as the companies belonging to it were not in a competitive relationship with the defendant in the strict sense.
The point of view of the consumers should be taken into account.
From their point of view, visiting Instagram accounts such as the defendant’s does not replace reading magazines.
The Regional Court misjudged this, as it based the question of substitutability on the perspective of the advertising customers and thus did not correctly apply Section 8 para.
3 No. 2 UWG in conformity with the Directive.
34
Furthermore, the defendant is of the opinion that links in the form of tap tags do not constitute a commercial act.
The concept of commercial activity is to be understood functionally and requires that the activity primarily serves the purpose of influencing consumers for the purpose of promoting sales.
However, the defendant merely wanted to satisfy the information interests of its followers through the tap tags.
It had not received any remuneration from the companies concerned, to whose Instagram accounts consumers were directed by clicking on the tap tags.
In addition, the concept of a commercial act in the present case must be interpreted in accordance with the Unfair Commercial Practices Directive.
In this respect, the Directive uses the concept of commercial practices.
Commercial practices presuppose a commercial communication by the entrepreneur.
The Regional Court failed to recognize that this was lacking in the present case, as the tap tag did not contain any information that allowed direct access to the activities of the company mentioned.
Rather, as a private act, the posts at issue fell within the scope of protection of freedom of expression.
35
In any case, however, if the tap tags were to be regarded as a commercial act, the commercial purpose for the targeted public would emerge directly from the circumstances.
Accordingly, a violation of Section 5a para.
6 UWG is ruled out.
This is shown by an overall view of the relevant features of the defendant’s Instagram account.
Not only the number of followers of 4.2 million was easily recognizable for the user.
Even when looking at an individual post, the number of “likes” indicates the commercial purpose of the profile.
The average attentive reader assumes that even unpaid editorial contributions are not objective and neutral reporting by an editorial team, but rather reflect the subjective opinion of the author of the article.
Therefore, the posts in question do not need to be labeled as advertising.
36
The facts of Section 3a UWG in conjunction with Section 6 TMG are also not fulfilled. § Section 6 TMG was also not fulfilled, as there was no commercial communication.
Furthermore, there was no noticeable impairment.
The withholding of information about an advertising activity of the defendant does not cause the consumer to make a business decision that would otherwise not have been made. This is because the consumer cannot order anything on the Instagram accounts to which the tap tags redirect the consumer.
37
The elements of the offence in No. 11 of the Annex to Section 3 UWG are therefore not fulfilled because the defendant’s posts neither contain editorial content nor are financed by an entrepreneur.
Furthermore, the facts of §§ 7, 58 RStV are not fulfilled, as the posts are not similar to television.
38
The defendant requests that
39
the regional court judgment be set aside and the action dismissed.
40
The plaintiff requests that
41
the appeal be dismissed.
42
The plaintiff defends the regional court judgment by repeating and expanding on his arguments at first instance.
He argues that he has standing.
The companies belonging to the plaintiff were in a competitive relationship with the defendant.
The view of the customers who commissioned and paid the defendant was decisive in this respect.
Ultimately, however, this was irrelevant, as the defendant was also in competition with the companies belonging to the plaintiff from the consumer’s point of view.
For example, the defendant deals with topics such as fashion, nutrition, cosmetics and jewelry.
These topics are also covered in the newspapers and magazines distributed by the companies belonging to the plaintiff association.
43
The setting of the tap tags by the defendant fulfills the requirements of a commercial act within the meaning of Section 2 para.
1 no. 1 UWG.
It must be taken into account that the tap tags are embedded in an image.
Even if the defendant did not receive any consideration from the companies for the links, this increased the attractiveness of its Instagram presence with regard to the conclusion of future advertising contracts.
44
The defendant also violated Section 5a para.
6 UWG.
The commercial purpose of the commercial act is not immediately apparent to the relevant public from the circumstances.
The high number of followers of the defendant is not sufficient for this.
Celebrities in particular have Instagram accounts with a similarly large number of followers, but regularly only use them to share scenes from their lives with their fans and not to advertise products or services as influencers.
In addition, the defendant has a large number of young followers who are not in a position to recognize the commercial purpose of the posts at issue without appropriate labeling.
45
Finally, the links to the company names are also likely to cause consumers to make business decisions that they would not otherwise have made.
By using a tap tag to go directly to the Instagram account of the designated company, consumers are made much easier to purchase products.
In particular, this saves them from having to use a search engine to find the relevant company pages.
46
Reference is made to the pleadings and annexes for the further submissions of the parties.
II.
47
The admissible appeal is unsuccessful.
The Regional Court correctly upheld the action. The decision is neither based on a violation of the law (Section 546) nor do the facts to be taken as a basis in accordance with Section 529 justify a different decision.
The action is admissible and fully justified.
48
The relief sought is sufficiently specific.
The plaintiff has made the specific form of infringement the subject of his request for injunctive relief.
In particular, the application for injunctive relief is so clearly formulated by the reference to the attachments containing the three disputed posts of 14.12.2017, 13.01.2018 and 04.03.2018, each including tap tags, that the subject matter and scope of the court’s jurisdiction pursuant to Section 253 para.
2 no. 2 ZPO are clearly delineated (see BGH, Urt. v. 28.11.2013, I ZR 7/23 – Online insurance brokerage, GRUR 2014, 398, 401).
The appeal has not objected to this either.
49
The plaintiff is a legally capable association for the promotion of commercial interests pursuant to Section 8 para.
1 sentence 1, para.
3 No. 2 UWG.
50
a) Pursuant to Section 8 para.
3 No. 2 UWG, the injunctive relief under Section 8 para.
1 sentence 1 UWG, associations with legal capacity to promote commercial or independent professional interests are entitled to injunctive relief if a significant number of entrepreneurs belong to them who sell goods or services of the same or a related kind on the same market, if they are in a position, in particular in terms of their personnel, material and financial resources, to actually perform their statutory tasks of pursuing commercial or independent professional interests and if the infringement affects the interests of their members.
51
According to the doctrine of the dual nature, the provision not only regulates the entitlement of the aforementioned associations, but also their standing to sue (BGH, judgment of 07.05.2015, I ZR 158/14 – Der Zauber des Nordens, GRUR 2015, 1240, 1240; Köhler/Feddersen, in: Köhler/Bornkamm/Feddersen, UWG, 38th ed, 2020, Section 8 para. 3.9; Ottofülling, in: MüKo-UWG, 2nd edition, 2014, Section 8 para. 349).
The associations for the promotion of commercial or independent professional interests are granted standing and entitlement to sue because the combating of unfair commercial acts pursuant to Section 1 sentence 2 UWG is also possible in the area of unfair competition.
§ Section 1 sentence 2 UWG is also in the public interest in undistorted competition (BGH, judgment of October 5, 1989, I ZR 56/89 – Wettbewerbsverein IV, GRUR 1990, 282, 284; Köhler/Feddersen, in: Köhler/Bornkamm/Feddersen, Section 8 para. 3.30).
The legitimacy of the associations’ legal standing and entitlement to claim also derives from their function of collectively representing members’ interests (BGH, Urt. v. 11.05.1995, I ZR 107/93 – Vergoldete Visitenkarten, GRUR 1995, 604, 605).
52
b) (1) The concept of goods or services of the same or a related kind is to be interpreted broadly.
It covers goods or services which are so similar or related in nature that it can be assumed with a certain degree of probability that the sales of one trader may be affected by anti-competitive actions of the other trader (BGH, Urt. v. 16.03.2006, I ZR 103/03 – Sammelmitgliedschaft IV, GRUR 2006, 778, 779; BGH, judgment of 01.03.2007, I ZR 51/04 – Krankenhauswerbung, GRUR 2007, 809, 810).
It is sufficient that a not entirely insignificant potential impairment can be considered with a certain, even if only low probability.
A corresponding competitive relationship is essentially established by the common affiliation to the same industry or at least to adjacent industries (BGH, Urt. v. 16.03.2006, I ZR 103/03 – Sammelmitgliedschaft IV, GRUR 2006, 778, 779).
The assessment of whether this is the case must be based on the competitive actions of the party against whom a claim is made.
However, if the advertising for a product is objected to, it is not the entire product range that is relevant, but in principle the sector to which the objectionable competitive measure is attributable (BGH, Urt. v. 16.11.2006, I ZR 218/03 – Sammelmitgliedschaft V, GRUR 2007, 610, 611).
53
In multi-sided markets, the different market sides can each establish a concrete competitive relationship independently of each other.
It has long been recognized that in the case of media that are financed both by users paying for editorial content and by advertising revenue from advertisements, the user market must be distinguished from the advertising market (BGH, decision of 29.09.1981, KVR 2/80 – Straßenverkaufszeitungen, GRUR 1982, 126, 127 f.).
Only insofar as commercial acts of entrepreneurs vis-à-vis consumers are at issue, the question of possible competitors must be based on the users.
Otherwise, the perspective of the opposite side of the market on the advertising market can and must be taken as a basis.
54
(2) According to these principles, a competitive relationship initially exists between the companies belonging to the plaintiff, which offer advertising services and in particular advertising space, and the defendant. By submitting the list of its named members, the plaintiff has created the prerequisites for determining which traders belong to it to the extent required by procedural law (LG AS K 1).
These include publishers, including [X .] Verlag and [Y .] Verlag, in whose printed works and magazines products are advertised that the defendant also presents on its Instagram account.
These include cosmetics, food and clothing.
The media group [X .] publishes, among other things, the magazine “[Xa .]”, which the publisher advertises as a program magazine aimed specifically at women.
The media group also publishes the magazines “[Xb .]” and “[Xc .]”.
Both are advertised as magazines for female readers, covering topics such as travel, nutrition and fashion.
The [Y .] publishing house publishes the magazine “[Ya .]”, whose target group is young people, and the magazine “[Yb .]”, which is advertised as a women’s magazine for fashion, beauty, love, success, career and trends.
The plaintiff also owns advertising agencies in the form of [U .]-Produktmanagement GmbH, [V .] Internet-Solutions and [W .] Service GmbH.
These companies are also in a competitive relationship with the defendant with regard to the acquisition of advertising budgets from product manufacturers.
55
The existence of a competitive relationship does not depend on whether the trend is away from print media and towards alternative media, in particular internet platforms, or whether certain companies do not advertise in print media at all (LG Heilbronn, judgment of 8 May 2018, 21 O 14/18 KfH – Instagram-Influencerin, GRUR-RS 2018, 18453, para. 45).
Companies that advertise their products use commercial common sense to select the advertising medium that they consider to be suitable for their advertising objective as part of an overall consideration of all relevant parameters.
Most companies base their advertising strategy on a media mix that uses different advertising media (see keyword “Mediamix”, Gabler Wirtschaftslexikon).
The fact that individual companies may completely forego advertising in print media as a result of this decision does not prevent the existence of a competitive relationship with regard to the generality of product manufacturers.
56
The different forms of advertising are brought closer together by a clarification of the commercial nature of influencers’ communication, which is required for legal reasons.
At present, advertisers do not decide on the advertising medium solely on the basis of the reachable group of recipients and the opportunity to present the product.
Advertising via influencers appears to be particularly effective precisely because of its seemingly personal character.
It is not far-fetched that advertising via influencers loses its appeal for product manufacturers to the extent that compliance with the legal obligation to label as advertising impairs the private appearance of the product presentation. Advertising, for example in a magazine, may well be considered as an alternative (LG Heilbronn, judgment of 8 May 2018, 21 O 14/18 KfH – Instagram-Influencerin, GRUR-RS 2018, 18453, para. 45).
57
(3) In addition, there is a concrete competitive relationship between those companies belonging to the plaintiff that offer users editorial content, in particular in the areas of entertainment, beauty and lifestyle, and the defendant with regard to the consumer groups it reaches.
There is no need for an examination of interchangeability to be carried out in accordance with strict antitrust principles in this respect either.
According to general opinion, a concrete competitive relationship already exists if both parties attempt to sell similar goods or services within the same end consumer group and therefore the competitive behavior of one party can affect the other, i.e. hinder or disrupt sales (BGH, Urt. v. 28.09.2011, I ZR 92/09 – Sportwetten im Internet II, GRUR 2012, 193, 195).
Since, in the interest of effective individual protection under unfair competition law, there are generally no high requirements for the existence of a specific competitive relationship, it is sufficient for the infringer to compete with the affected party in some way through its infringing act in the specific case (BGH, Urt. v. 19.04.2018, I ZR 154/16 – Werbeblocker II, GRUR 2018, 1251, 1252).
Particularly if a trend is discernible that young consumers in particular are foregoing the consumption of established media, in the present case primarily magazines in the beauty and lifestyle interest categories, and instead inform themselves about cosmetics and fashion items on the defendant’s Instagram account, the existence of a competitive relationship with press companies belonging to the plaintiff is also indicated via the user market.
58
(4) Whether the third-party companies benefiting from the defendant’s business activities at issue (see below) are in a competitive relationship with the publishers and advertising companies belonging to the plaintiff can be left open.
Even if such a relationship were to be denied, the plaintiff is entitled to sue.
As a consumer protection standard, Section 5a para.
6 UWG is directly aimed at protecting consumers from being misled.
In this respect, the entitlement of interest groups serves to protect consumers for the benefit of others (Köhler, GRUR 2019, 123, 124 f.).
Consumers, as those directly affected by the unfair commercial act, are not entitled to claim under Section 8 para.
3 UWG are entitled to claim.
Indirectly, competitors also protect their own interests by claiming against the unfairly acting company (see Dreyer, in: Harte-Bavendamm/Henning-Bodewig, UWG, 4th edition, 2016, Section 5a UWG para. 25).
As providers of services that are substitutable with the services offered by the defendant, they can be adversely affected by misleading consumers with regard to their activities on the market.
59
b) (1) A competition association belongs to a competition association pursuant to Section 8 para.
§ Section 8 para.
3 No. 2 UWG, a competition association includes a significant number of traders if these members are representative as traders in relation to the relevant market in such a way that abusive action by the association can be ruled out. This can also be assumed in the case of a small number of members active on the relevant market; it does not matter whether these association members are representative in terms of their number and economic weight in relation to all other entrepreneurs active on the market (BGH, Urt. v. 16.11.2006, I ZR 218/03 – Sammelmitgliedschaft V, GRUR 2007, 610, 611, Ottofülling, in: MüKo-UWG, 2nd ed., 2014, Section 8 para. 397).
60
(2) The list of its named members submitted by the plaintiff shows that eleven publishers and three advertising agencies belong to it (LG AS K 1 pp. 58-59).
The publishers include [Y .]-Verlag and [X .]-Verlag.
These publishers publish nationwide magazines that advertise products, especially for young people, which are also found on the defendant’s Instagram account.
In this respect, an overall assessment of the circumstances of the individual case shows that the plaintiff association includes a significant number of companies pursuant to Section 8 para.
3 No. 2 UWG.
61
c) Furthermore, the plaintiff is in a position to actually perform its statutory tasks based on its personnel, material and financial resources.
The plaintiff association has been operating as a registered association since 19[…].
Its statutory tasks include the protection of the commercial interests of its members, which also includes respecting the regulations on unfair competition (LG AS K 7).
The appeal has not challenged this either.
62
The plaintiff has a claim against the defendant to cease and desist the objectionable conduct under Section 8 para.
1 sentence 1, para.
3 No. 2 i.V.m. § Section 5a para.
6 UWG.
63
a) It follows from the above that the plaintiff is entitled to injunctive relief pursuant to Section 8 para.
§ Section 8 para.
3 No. 2 UWG.
64
b) The tap tags contained in the defendant’s posts of 14.12.2017, 13.01.2018 and 04.03.2018 and challenged in the action are commercial acts.
65
(1) (a) A commercial act means, pursuant to Section 2 para.
§ Section 2 para.
1 No. 1 UWG means any conduct of 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.
This requires an objective connection in the sense that the act is objectively suitable for promoting the sale or purchase of one’s own or another company’s goods or services.
In order to be subject to the scope of application of unfair competition law as a commercial act, the conduct must be related to the company and the market (Köhler, in: Köhler/Bornkamm/Feddersen, Section 2 No. 17 et seq.).
66
(b) According to Section 2 para.
1 No. 1 UWG, in order to be a commercial act, the conduct must be for the benefit of the own or another person’s business.
The term “undertaking” is used in accordance with
§ 2 Abs.
1 No. 6 UWG, the term “undertaking” describes the organizational unit that carries out business activities in the context of its commercial, craft or professional activities.
67
The regulations serve to implement Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2015 on unfair commercial practices (hereinafter: UCP Directive; UCP Directive).
Although the scope of application of the UCP Directive is only partially reached in the present case (see below), the terms must be interpreted uniformly in accordance with the Directive, as the German legislator deliberately transposed the UCP Directive in 2008 in an excessive manner (explanatory memorandum to the draft bill, BT-Drs. 16/10145, p. 21) and also adhered to this regulatory concept in the 2015 amendment to the UWG (explanatory memorandum to the draft bill, BT-Drs. 18/4535, p. 8).
The UCP Directive uses the terms “undertaking” and “trader” synonymously (ECJ v. 03.10.2013, C-59/12 – BKK Mobil Oil, WRP 2013, 1454, para. 31) and contrasts them antinomically with the consumer to be protected.
Against the background of the consumer’s need for protection, the concept of entrepreneur is therefore interpreted broadly (ECJ v. 03.10.2013, C-59/12 – BKK Mobil Oil, WRP 2013, 1454, para. 38).
68
(i) The defendant initially acts for the benefit of its own company.
She acts as an influencer and has also stated this activity as her profession in these proceedings.
As an influencer, she independently operates a business (OLG Frankfurt, decision of 23.10.2019, 6 W 68/19 – Disguised advertising as an “influencer”, BeckRS 2019, 26975; OLG Munich, judgment of. 25.06.2020, 29 U 2333/19 – Blauer Plüschelefant, juris-Rn. 39; OLG Hamburg, Urt. v. 02.07.2020, 15 U 142/19, p. 10 f.; LG Göttingen, Urt. v. 13.11.2019, 3 O 22/19 – Ernährungstipps, Magazindienst 2020, 70, juris-Rn. 22 f.; LG Munich I, Urt. v. 29.4.2019, 4 HK O 14312/18 – Cathy Hummels, GRUR-RR 2019, 332, 334; Henning-Bodewig, WRP 2017, 1415, 1417; Timmermann/Berndt, WRP 2020, 996, 997 para. 16). The operation of her Instagram account is carried out as part of an economic activity that is carried out permanently under her own responsibility and for her own account for the purpose of making a profit.
The defendant has consistently designed its Instagram account as a business account.
69
The posts at issue on its Instagram account are aimed overall at attracting attention and resonance in both consumer and business circles in order to strengthen the defendant’s image as an influencer (see KG, judgment of 8 January 2019, 5 U 83/18 – #vrenifrost, GRUR 2019, 543, 544).
Every single one of its posts is objectively aimed at promoting the defendant’s brand awareness and thus also its market value, and thus benefits its own company.
70
The same applies to the tap tags used in the posts.
On the one hand, they benefit the defendant’s own company on the user market through the service it emphasizes to its followers, which makes it easier for them to find products that appear attractive to them, and on the other hand on the advertising market through the increased attractiveness for advertising partners, which on the one hand reach a larger audience through the higher number of followers and on the other hand are individually highlighted in a special way.
71
(ii) In addition, the company reference is justified by their actions in favor of other companies.
Insofar as the tap tags themselves refer to third-party companies, which happens in all of the above-mentioned cases, the required corporate connection also arises from the fact that they act directly in favor of these companies whose products are highlighted by the tap tags.
72
(c) The market connection is defined by the wording “conduct … which is objectively related to the promotion of the sale or purchase of goods or services …” in Section 2 para.
1 No. 1 UWG.
It exists if the act by its nature can have an effect on market participants and thus influence market activity (Köhler, in: Köhler/Bornkamm/Feddersen, Section 2 para. 35).
73
According to the prevailing view, certain conduct is not objectively related to the promotion of sales if it is not functionally related to the promotion of sales because it primarily serves objectives other than influencing consumers’ business decisions with regard to products and merely has a reflex effect on the promotion of sales or purchases.
In particular, the information of the public, especially consumers, but also the pursuit of ideological, social, scientific, editorial or artistic objectives can be considered (Köhler, in: Köhler/Bornkamm/Feddersen, § 2 para. 51; Harte/Henning/Keller, § 2 para. 87).
In this respect, too, it is necessary to differentiate between the defendant’s activities (also KG, judgment of 08.01.2019, 5 U 83/18 – #vrenifrost, GRUR 2019, 543, 544; OLG Hamburg, judgment of 02.07.2020, 15 U 142/19, p. 10; LG Munich I, judgment of. 29.4.2019, 4 HK O 14312/18 – Cathy Hummels, GRUR-RR 2019, 332, 334).
74
(i) The defendant sells its own services – the provision of advertising space and the provision of advertising services – directly to its advertising partners alone.
The defendant does not receive any remuneration on the user market.
However, the quality of its posts in terms of aesthetics and/or content as well as their acceptance by subscribers directly influence the advertising value of the defendant. This depends on the one hand on the size of the audience it reaches, typically the number of followers, and on the other hand on the accuracy and effectiveness of its advertising approach.
The generation of the number of followers and their loyalty is based on the defendant’s ability to convey content in its posts that addresses the interests and needs of the followers and to create a community characterized by trust and confidence (“community”) through this content (cf. Timmermann/Berndt, WRP 2020, 996, 997, para. 9 f.).
With the design of all its posts in general and with the tap tags at issue in particular, the defendant pursues the goal of promoting its own company, for example by increasing the number of its followers and the number of comments from visitors to its posts.
The enhancement of the defendant’s image in the relevant public, which includes consumers on the one hand and entrepreneurs on the other, is tantamount to an increase in the value of the services it offers (KG, judgment of January 8, 2019, 5 U 83/18 – #vrenifrost, GRUR 2019, 543, 544).
In this respect, it does not matter whether the defendant received consideration from the companies to whose pages the links lead for placing the tap tags (LG Heilbronn, judgment of 8 May 2018, 21 O 14/18 KfH – Instagram-Influencerin, GRUR-RS 2018, 18453, para. 33).
The attractiveness of her company for potential business partners is growing in any case.
75
Against this backdrop, it would be misrepresenting the economic context to consider the services provided to users as free of charge and – as with traditional media – merely aimed at providing information or entertainment and therefore not at promoting sales (see, however, KG, judgment of 8 January 2019, 5 U 83/18 – #vrenifrost, GRUR 2019, 543, 544; OLG Munich, judgment of 25.06.2020, 29 U 2333/19 – Blauer Plüschelefant, juris para. 42; probably also Timmermann/Berndt, WRP 2020, 996, 997 para. 7, 18 et seq.).
In fact, at this point there is an apparent unequal treatment of influencers and conventional advertising-financed media, where the mere interest in obtaining advertising and advertising orders is not considered sufficient to justify a market connection of the editorial content, because advertising-financed media are regularly dependent on persuading the advertising public to place advertisements (BGH of February 9, 2006, I ZR 124/03 – Rechtsanwalts-Ranglisten, GRUR 2006, 875, para. 28).
76
The unequal treatment associated with the linking of content with the promotion of one’s own sales from a legal perspective (KG, judgment of 08.01.2019, 5 U 83/18 – #vrenifrost, GRUR 2019, 543, 544; similarly OLG Munich, judgment of. 25.06.2020, 29 U 2333/19 – Blauer Plüschelefant, juris-Rn. 40), however, takes into account the development in the reality of influencer marketing, which, unlike conventional advertising in newspapers, magazines, radio and television, does not operate on the basis of visual or acoustic dividing lines between editorial content and third-party advertising.
The dissolution of these boundaries, from which the defendant benefits in economic terms because its statements reach the market in a different way than conventional advertising statements, must be accepted by the defendant in legal terms.
The content of the posts directed at the followers must therefore, as the Regional Court correctly found (LGU p. 9; also OLG Frankfurt, decision of 23.10.2019, 6 W 68/19 – disguised advertising as an “influencer”, BeckRS 2019, 26975), be considered as a whole to be aimed at promoting its own sales.
A distinction between “private postings” and “advertising postings”, as made by the plaintiff (AS 19), is ruled out for legal reasons (in order to protect the defendant’s fundamental rights).
77
The posts are addressed to followers who are not acting for commercial or independent professional purposes, i.e. to consumers pursuant to Section 2 para.
§§ 2 Abs.
2 UWG, 13 BGB, are addressed.
The economic interests of consumers are also affected, particularly with regard to the allegation of non-transparent advertising.
The scope of application of the UCP Directive is opened up with regard to the promotion of own sales, which is why an interpretation in conformity with the Directive is required in this respect.
78
Contrary to the view of the appeal (AS 24), a commercial practice under Art. 2 lit.
d UCPD does not necessarily require a commercial communication.
The wording of Art. 2 lit.
d of the UCPD, which places the commercial communication next to the communication and the conjunction “or” next to the “act, omission or course of conduct”, indicates that any conduct is sufficient to constitute a commercial practice.
A direct connection with the promotion, sale or supply of a product to consumers is sufficient for the UCPD.
In any case, setting a tap tag constitutes an act within the meaning of Art. 2 lit.
d of the UCPD.
79
The Senate is unable to agree with the defendant’s argument that there is no commercial act because it is the user who makes the tap tags visible by clicking on the image.
The decisive factor is that the defendant adds the tap tags to its posted images.
Whether it edits the images in such a way that the advertising information is directly visible or chooses the technical design of tap tags described above is irrelevant.
The intervening action of the user does not change this.
Instagram users are familiar with how tap tags work. The fact that they deliberately click on the images to make the tap tags visible may constitute an agreement to receive the advertising possibly associated with tap tags, but does not change their legal quality.
80
All of the tap tags at issue appear to be acts for the benefit of the defendant’s own company, which it carried out with the intention of promoting its own sales.
81
A restriction of the defendant that infringes fundamental rights does not result from the assumption of market relevance and the applicable rules of the UWG, even for the content-related parts of its posts.
Of course, the limits of the applicable UWG must be interpreted in light of the defendant’s fundamental rights to freedom of expression, possibly art, and freedom to pursue a profession (cf. below).
82
The defendant’s fundamental right to freedom of expression pursuant to Art.
Art. 10 para.
1 ECHR, Art. 5 para.
1 GG must be taken into account in the overall assessment of the unfairness of the commercial act.
The provisions of the UWG are “general laws” within the meaning of Art. 10 para.
2 ECHR, 5 para.
2 GG, which are capable of limiting the scope of the fundamental right on the one hand, but must be interpreted in the light of the fundamental right on the other (fundamentally BVerfG, Urt. v. 15.01.1958, 1 BvR 400/51 – Lüth, BVerfGE 7, 198; see BGH, judgment of 01.03.2018, I ZR 264/16 – Verkürzter Versorgungsweg II, GRUR 2018, 622 para. 15; BGH, judgment of 07.03.2019, I ZR 254/16 – Knochenzement III, GRUR 2019, 644, para. 23).
83
(ii) In addition, there is again the promotion of third-party sales with regard to the products of the companies linked by the tap tags.
Just as the corporate connection can be created by favoring a third-party company, the market connection can also arise from the promotion of third-party sales.
It is thanks to this circumstance that even the editorial content of conventional media can fall within the scope of application of the UWG, which the UWG itself assumes, for example in Section 3 para.
3 i.V.m. Anh.
No. 11 UWG strictly prohibits so-called “surreptitious advertising”.
84
The UCP Directive does not preclude the extension of the scope of application of the Act against Unfair Competition to acts objectively connected with the promotion of the sales of other companies.
The promotion of the sales of another undertaking which is not carried out in its name or on its behalf does not fall within the scope of this Directive.
Article 2 lit.
d of the UCPD defines a commercial practice as any act, omission, course of conduct or statement, commercial communication, including advertising and marketing, by a trader which is directly related to the promotion, sale or supply of a product to consumers.
85
In this regard, the European Court of Justice has ruled that a merely indirect link is not capable of materially influencing the economic behavior of the consumer in his decision (ECJ, judgment of 17.10.2013, C-391/12 – GOOD NEWS, GRUR 2013, 1245, 1246).
In the case of indirect influence, the European Court of Justice is of the opinion that there is already no commercial practice (ECJ, judgment of 17.10.2013, C-391/12 – GOOD NEWS, GRUR 2013, 1245, 1246).
86
As a consequence, however, indirect influence is not exempt from sanctions, but is merely not subject to harmonization under the UCP Directive. The limits arising from the application of fair trading law are determined on the basis of Art. 6 para.
1 of Regulation No. 864/2007 on the law applicable to non-contractual obligations (Rome II; OJ 2007 No. L 199/40; hereinafter: Rome II Regulation) according to the place where the competitive relationships or collective consumer interests are affected.
Influencer marketing in internet-based social networks is subject to the country of origin principle pursuant to Art.
Art. 3 para.
2 of Directive 2000/31 on electronic commerce (OJ 2000 L 178/1) will apply.
However, the defendant is also domiciled in Germany.
87
Otherwise, the primary law product freedoms continue to apply.
Applying the Unfair Competition Act to the conduct of influencers does not constitute a restriction on the free movement of goods or services that is prohibited under EU law.
The fact that the barriers to influencer marketing with regard to advertising for third-party companies may vary within the EU is a consequence of the integration approach pursued.
However, the defendant cannot derive any rights from this.
The legal situation is similar for telephone advertising, for example.
Union law does not provide any means of combating discrimination against nationals.
88
Within the framework of these Union law requirements, it is up to the national legislator to determine the extent to which actions that only indirectly serve to promote sales should be covered by fair trading regulations.
Setting the tap tags can therefore constitute a commercial act according to the general principles of German unfair competition law (see BGH, judgment of February 6, 2014, I ZR 2/11 – GOOD NEWS II, GRUR 2014, 879, para. 13; BGH, judgment of 11.12.2014, I ZR 113/13 – Bezugsquellen für Bachblüten, GRUR 2015, 694, para. 26; OLG Hamburg, judgment of 02.07.2020, 15 U 142/19, p. 12).
89
In the case of statements that do not serve to promote one’s own sales, it must be assessed on the basis of an evaluation of all the circumstances of the individual case whether an act primarily serves to promote third-party sales or the purchase of goods or services or whether it serves other objectives.
This depends not only on the actual act in question, but also on the accompanying circumstances (BGH, Urt. v. 11.12.2014, I ZR 113/13 – Sources of supply for Bach flowers, GRUR 2015, 694, para. 28).
90
In the case of conventional media, the question must always be answered at this point as to whether, for example, in the case of business reporting or the publication of product tests, the objectively ascertainable effects on the market independently support the application of the UWG or whether the editorial content – according to the prevailing opinion – should benefit from the privileged treatment of editorial content under press law up to the limit of surreptitious advertising or an ascertainable advertising surplus.
The linking of all content posted by the defendant as described above relates solely to the market reference resulting from the promotion of its own sales.
With regard to the market reference resulting from the promotion of the sales of third-party companies, a distinction must be made.
91
Posts that highlight the products of certain third-party companies in a qualified manner remain subject to the application of the Unfair Competition Act as commercial acts if and because they are objectively aimed at promoting third-party sales.
In the case of a paid advertising partnership, this follows directly from the defendant’s own interest in remuneration.
Even where no paid advertising partnership (yet) exists, the “advertising surplus” can result from the other external circumstances as part of the required overall assessment (Harte/Henning/Keller, Section 2 para. 90).
92
Unlike the appeal (AS 36), the Senate does not consider this approach to be outdated.
The most recent German decision of the Federal Court of Justice, as far as can be seen, which confirms it structurally without even casting doubt on its justification, dates from 2016 (BGH, Urt. v. 31.03.2016, I ZR 160/14 – Im Immobiliensumpf, GRUR 2016, 710, para. 16, on critical statements in the press).
The practice of subjecting editorial contributions with excess advertising to the Unfair Competition Act is largely approved in the literature (see for example Köhler, in: Köhler/Bornkamm/Feddersen, Section 2 para. 67; Harte/Henning/Keller, Section 2 para. 83; Ahrens, GRUR 2018, 1211, 1214 et seq.) and taken as a basis in the application of law by the courts of lower instances (for example in OLG Braunschweig, decision of 08.01.2019, 2 U 89/18, MMR 2019, 467, 468; KG, judgment of 08.01.2019, 5 U 83/18 – #vrenifrost, GRUR 2019, 543, 544; OLG Frankfurt, decision of 23.10.2019, 6 W 68/19 – disguised advertising as an “influencer”, BeckRS 2019, 26975; LG Munich I, decision of. 29.4.2019, 4 HK O 14312/18 – Cathy Hummels, GRUR-RR 2019, 332, 334).
The opinion of the Austrian Supreme Court, according to which, from the point of view of the transparency requirement, no additional clarification of the public through labeling is required even if an editorial contribution contains statements of a commercial nature with “advertising excess” as a courtesy (öOGH, Urt. v. 26.09.2016, 4Ob60/16a, Erl. 3.2, ECLI:AT:OGH0002:2016:0040OB00060.16A.0926.000), does not convince the Senate.
Within the scope of application of the UCP Directive, it is not only No. 11 Anh.
I UCPD prohibits surreptitious advertising by way of a per se prohibition (see above), but Art. 7 para.
2 of the UCP Directive requires the application of the rules contained in Section 5a para.
6 UWG.
The standard applied by the öOGH as to whether additional information of the addressees is required seems to differ from that of Art. 7 para.
2 UCPD, which only dispenses with labeling if the commercial purpose is directly apparent from the circumstances. Furthermore, the öOGH’s assessment that readers do not expect neutral reporting even from traditional print media does not appear to be transferable to the German market.
In Germany, readers may also assume that the design of the editorial section is not necessarily neutral and objective in the strict sense because freedom of the press is closely linked to freedom of opinion.
Against this background, it is obvious that an eco-magazine will report differently from a business newspaper and a left-liberal paper differently from a conservative one.
However, this is not the point of the provision in Art. 7 para.
2 of the UCPD.
It must always be ensured that the obvious interest of advertising-financed media in acquiring lucrative advertisements does not lead to a situation where favorable reporting can be bought.
In Germany, it can still be assumed that users trust that, at least in the media, editorial reporting is not influenced by the interest in generating revenue from the advertising business (see Ahrens, GRUR 2018, 1211, 1212: “natural expectation that editorial articles are written in accordance with journalistic professional ethics free from the influence of advertisers on content”).
93
In the present case, the advertising surplus in favor of the third-party companies results from the possibility created by the tap tags for users to easily access the sales environment designed solely by the third-party companies (in conclusion, also OLG Braunschweig, judgment of 13.05.2020, 2 U 78/19 – Fitnessinfluencerin, MDR 2020, 872, juris-Rn. 40; OLG Hamburg, judgment of 02.07.2020, 15 U 142/19, p. 11).
In any case, the Instagram accounts of the companies that the defendant linked to in the posts at issue contain, among other things, an environment modeled on the look of an online store.
The user accesses this environment by clicking on a bag symbol or by pressing a button labeled “View store”.
Images of the products appear, along with a brief description of the product and the product price.
After clicking on a product, another button with the inscription “View on the website” appears.
By clicking on this button, the user is immediately redirected to the company’s external website, which enables the purchase of the products.
94
For example, when assessing a description of Bach flower therapy published on the internet, the Federal Court of Justice recognized the objective connection with the promotion of third-party sales in the fact that the sources of supply mentioned on the same website referred directly to the ordering options exclusively for the “original Bach flowers” on Amazon (BGH, Urt. v. 11.12.2014, I ZR 113/13 – Bezugsquellen für Bachblüten, GRUR 2015, 694, para. 30).
In contrast to the decisions Schöner Wetten (BGH, judgment of April 1, 2004, I ZR 317/01 – Schöner Wetten, GRUR 2004, 693, 694) and Werbung für Fremdprodukte (BGH, judgment of October 17, 2013, I ZR 317/01 – Schöner Wetten, GRUR 2004, 693, 694), the setting of the hyperlink was not considered to be an infringement. 17.10.2013, I ZR 173/1 – Werbung für Fremdprodukte, GRUR 2014, 573, para. 18) – are not understood as a neutral “service to the user”, which only enables faster access to the relevant products.
It is precisely in the acceleration and facilitation of access that the promotion of competition is to be recognized (BGH, Urt. v. 11.12.2014, I ZR 113/13 – Bezugsquellen für Bachblüten, GRUR 2015, 694, para. 34, 35).
The tap tags used by the defendant also contribute to such acceleration and facilitation.
The fact that it may not yet be possible to conclude purchase agreements directly on the Instagram accounts of the manufacturers linked in the tap tags does not prevent this.
95
Based on this assessment, the defendant’s submission that it merely wanted to avoid inquiries from its followers about the manufacturers of its clothing with the tap tags cannot be accepted.
In the case of objectively third-party sales-promoting actions, the existence of a commercial act in the legal sense is only excluded if the action primarily serves objectives other than influencing the business decision of consumers with regard to products and merely has a reflex effect on the promotion of sales or purchases (see BGH, Urt. v. 31.03.2016, I ZR 160/14 – Im Immobiliensumpf, GRUR 2016, 710, 711).
96
This is not the case here.
On the contrary, the defendant’s entire business model as an influencer is based on addressing existing economic needs of users,
possibly
to awaken as yet unperceived economic needs and to open the way to their satisfaction. Against this background, the defendant cannot rely on the fact that the curiosity of the users, which it itself has aroused, prompts them to make inquiries (also OLG Hamburg, Urt.
v. 02.07.2020, 15 U 142/19, p. 11).
97
The defendant itself wants all three posts at issue to be understood as “private postings” that it does not publish on behalf of companies and without financial consideration (AS. 16).
From the company perspective of the defendant, these are primarily investments in the expansion and maintenance of her community.
This requires the presentation of her private life with trips to [Ort] and [Ort] or staying on a factory floor.
98
In the context of the required overall assessment, however, it is not apparent that the tap tags at issue, which refer to clothing manufacturers and restaurants, would be required by the content and objectives of the posts, namely the presentation of the defendant as a private individual, or even appear suitable to support, promote or deepen their statements (in this respect, however, the starting position in fact differs from that in the case of Cathy Hummels, OLG Munich, judgment of 25.06.2020, 29 U 2333/19 – Blauer Plüschelefant, juris-Rn. 41, where the challenged tap tags were actually related to the editorial part of the posts).
99
In the post dated 14.12.2017, in which the defendant is shown in front of a hotel in [Ort] the disputed tap tags refer to the brand accounts “[A .]”, “[B .]” and “[C .]” (AS LG K 4a-c).
In contrast to the two other images in dispute, there is no accompanying text for this post.
The defendant merely states where and when she wore clothing from the companies mentioned.
It is not clear to what extent the defendant’s trip to [Ort] is connected to the linked clothing brands.
100
The tap tags in the defendant’s post of 13.01.2018, on which the defendant is depicted in [Ort] in the snow, are also commercial acts.
When clicked, the links direct the consumer to the brand accounts “[D .]”, “[B .]” and “[E .]”.
An objective connection with the promotion of the sales of third-party companies can also be assumed for these tap tags (see KG, judgment of 08.01.2019, 5 U 83/18 – #vrenifrost, GRUR 2019, 543, 545).
The post contains an accompanying text that includes comments on the weather and also recommends a hotel in [Ort] (AS LG K 5a-c).
The journalistic content of the accompanying text is to be classified as low.
This is an indication to be taken into account in the overall view, which argues for the qualification of the links as commercial acts (KG, judgment of 8 January 2019, 5 U 83/18 – #vrenifrost, GRUR 2019, 543, 543).
Despite the accompanying text, the tap tags cannot be qualified as content of the post, as there is no substantive connection between the text content and the links in the image to the Instagram accounts of fashion companies.
101
Finally, according to the above, the tap tag “[F .]”, which can be found in the defendant’s post of 4 March 2018, which shows her in front of a commercial hall (AS LG K 6a-c), constitutes a commercial act.
This post is accompanied by a text dealing with the importance and value of failure.
In this case, too, there is no obvious connection between the content of the post and the subject matter of the link.
102
Finally, the affirmation of the advertising surplus in the context of the required overall assessment is supported by the undisputed fact that the defendant advertises for third-party companies on its Instagram account for a fee (KG, judgment of 8 January 2019, 5 U 83/18 – #vrenifrost, GRUR 2019, 543, 543; OLG Frankfurt, decision of 23 October 2019, 6 W 68/19 – Getarnte Werbung als “Influencer”, BeckRS 2019, 26975).
This suggests that the defendant also deliberately promotes companies with tap tags placed outside of business relationships in order to at least arouse their interest in influencer marketing in cooperation with it (OLG Braunschweig, judgment of 8 January 2019, 2 U 89/18, MMR 2019, 467, 468).
103
c) A violation of Section 3 para.
3 i.V.m. Anh.
No. 11 UWG fails due to the lack of editorial content in the legal sense.
The provision in Annex.
No. 11 UWG implements the facts in No. 11 Anh.
I of the UCPD.
According to this, editorial content must be used in media.
Irrespective of the requirements for “editorial content”, the defendant’s posts do not meet the latter requirement.
The term “media” in No. 11 Anh.
I UGP-RL or No. 11 Anh.
UWG is obviously different from the definition of media in No. 26 Anh. I UCPD, as other language versions make clear.
For example, the English version in No. 26 Anh.
I UCPD speaks of remote media, the French version of outil de communication à distance.
104
The term “media” used in No. 11 UCPD is not explained in the legislative materials for the UCPD.
However, it can be inferred from the system of the UCPD that the stricter definition compared to Art. 7 para.
2 of the UCP Directive in No. 11 Anh.
II of the UCPD responds to an increased risk situation that only exists for media in the narrower sense, if and because they offer a special guarantee for the journalistic quality of their editorial content according to their self-imposed standards.
Media can certainly operate online.
It is also conceivable that bloggers, for example, act in a way that fulfills the concept of media (in this differentiating sense also Scherer, WRP 2019, 277, 280).
However, this is not the case with the defendant.
105
d) By placing the tap tags on its posts, the defendant has violated the prohibition of misleading omission under Section 5a para.
6 UWG.
According to this provision, 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 make a commercial decision that he would not have made otherwise.
106
According to the above statements, the defendant is pursuing a commercial purpose by placing the tap tags at issue.
The defendant has not made this advertising character clear.
It is undisputed that the defendant did not mark the posts containing the tap tags at issue as advertising.
The commercial purpose is also not directly apparent from the circumstances.
107
(1) The differentiation made above with regard to the requirements of the commercial act with regard to company and market reference continues with the “commercial purpose”, which is a prerequisite in Section 5a para.
6 UWG is a prerequisite.
Here too, on the one hand, the purpose pursued by the defendant in the design of its posts is to act in favor of its own company and to create attractive and interesting posts in the objective context of promoting its own sales in order to arouse interest, create user confidence and increase the number of its followers in order to increase its market value as an advertising service provider.
On the other hand, the commercial purpose is also to act for the benefit of third-party companies that manufacture certain products and to promote the sale of their products.
108
From the wording in Art. 2 lit.
f of the Directive on electronic commerce, according to which “information giving direct access to the activity of the undertaking, organization or person, in particular a domain name or an electronic mail address” does not constitute a form of commercial communication, it cannot be inferred that the use of a hyperlink can never have a commercial purpose. It is not for nothing that the Directive states that such information “as such” does not constitute commercial communication.
Of course, a commercial purpose can be pursued with such information in context. This is the case here.
109
(2) (a) The commercial purpose arises from the circumstances if it is apparent to the consumer at first glance and without any doubt that the act is based on a commercial purpose (KG, decision of 17.10.2017, 5 W 233/17 – constantly challenging yourself, GRUR-RR 2018, 155, 155; OLG Celle, judgment of 08.06.2017, 13 U 53/17 – Hashtag #ad, GRUR 2017, 1158, 1159).
Only if this is the case is there no need for a separate reference to the commercial purpose.
The commercial purpose of a commercial act must be recognizable to the consumer at the latest at the time when he can make a business decision or at least a decision directly related to it (Köhler, in: Köhler/Bornkamm/Feddersen, Section 5a para. 7.26).
However, it is not sufficient if the commercial purpose only becomes apparent to the consumer after an analytical examination of the post (OLG Celle, judgment of 8 June 2017, 13 U 53/17 – Hashtag #ad, GRUR 2017, 1158, 1159; LG Heilbronn, judgment of 8 May 2018, 21 O 14/18 KfH – Instagram-Influencerin, GRUR-RS 2018, 18453, para. 54).
The manner in which the commercial purpose is identified is left to the entrepreneur.
However, the reference must be made so clearly that from the point of view of an average member of the respective addressed or affected consumer groups, there is no doubt about the existence of a commercial purpose.
110
(b) The question of the recognizability of the commercial purpose pursued by the defendant is to be answered in accordance with Section 3 para.
4 sentence 1 2nd Var UWG must be determined from the perspective of an average member of the targeted consumer group who is reasonably well-informed and reasonably attentive to the situation (OLG Frankfurt, decision of 23.10.2019, 6 W 68/19 – Getarnte Werbung als “Influencer”, BeckRS 2019, 26975; Henning-Bodewig, WRP 2017, 1415, 1419).
The Regional Court assumed that the question of the recognizability of the commercial purpose should be based on the perspective of children, since the defendant’s followers are often very young and the defendant stated 16-24 year olds as the main user group at the hearing, but admitted that younger users were also represented (LGU p. 11).
In the grounds of appeal, the defendant conceded that its predominant group of followers did not consist of children and young people, but of young adults.
Thus, 40% of the defendant’s followers are between 18 and 24 years old (AS 30).
Only around 5 % of the followers are aged between 13 and 17 (AS 30).
111
However, no evidence is required in this respect.
The main difference concerns the proportion of users aged between 13 and 17.
However, the Senate assumes that the experience horizon of even 13 to 17-year-olds does not differ significantly from that of 18 to 24-year-olds with regard to the existence and functioning of influencer marketing (similar assessment by Scherer, WRP 2019, 277, 279, based on empirical studies: commercial communication is regularly recognized from the age of 11; no difference to adults from the age of 15). Young teenagers are also familiar with the influencer profession, know that influencers sometimes generate considerable income from this activity and have the knowledge that this income comes from advertising revenue, which is paid either for the presentation of banner ads or for the use and/or highlighting of certain products.
112
With regard to the assessment of the perception of the commercial acts at issue, the members of the Senate are obviously not part of the target public based on their age.
However, to the extent that the assessment of whether the commercial purpose is directly apparent from the circumstances depends on the view of an average member of the targeted consumer group of 13 to 24-year-olds, the Senate was able to determine the public’s understanding on the basis of its own expertise and life experience.
The question of whether it is sufficiently clear from the overall context of the challenged commercial acts that a commercial purpose is being pursued, which is decisive for the assessment of direct surrender, does not require any special knowledge or experience that would be exclusively accessible to young people or “digital natives” and closed to the members of the Senate.
Due to its constant involvement in competition cases, the Senate considers itself in a position to assess the existence of the obviousness of the commercial purpose based on its own experience (see BGH, Urt. v. 18.09.2014, I ZR 34/12 – Runes of Magic II, WRP 2014, 1447 para. 20).
113
(3) (a) Even in the case of the obviousness of the pursuit of the commercial purpose – in contrast to the divergent assessments made by the higher regional courts (OLG Munich, judgment of 25.06.2020, 29 U 2333/19 – Blauer Plüschelefant, juris para. 43; OLG Hamburg, judgment of 02.07.2020, 15 U 142/19, p. 13 et seq.) – must be differentiated.
With regard to the purpose pursued by the defendant to promote its own sales, the Senate recognizes both the development of the professional image of “influencer” and the self-evidence of its dissemination among the addressees addressed.
The Senate knows that children and young people no longer just dream of becoming rich and famous as athletes or pop stars, but that schoolchildren emulate influencers as role models and – occasionally with considerable success – run their own channels on YouTube or other social networks.
It also assumes that the relevant public knows that the defendant’s verified Instagram account has not been subscribed to by over 4 million users because the defendant can sing so well, is an excellent actress, is on everyone’s lips as a climate activist or people are interested in her because she belongs to the high nobility, even if famous people on Instagram maintain accounts with similarly high follower numbers as the defendant.
114
The addressees, especially teenagers and young adults who come across her account, know that the defendant is an influencer, know her business model and know how the defendant generates her income.
Against this background, the Senate assumes that the commercial purpose pursued by the defendant to become active for the benefit of her own company and to promote the sale of her own services to advertising partners with her posts is not misjudged because it arises from the circumstances (similarly OLG Munich, Urt. v. 25.06.2020, 29 U 2333/19 – Blauer Plüschelefant, juris-Rn. 43; LG Munich I, Urt. v. 29.4.2019, 4 HK O 14312/18 – Cathy Hummels, GRUR-RR 2019, 332, 334).
115
It may be that young people in particular have particular difficulties in taking this knowledge into account in their business decision-making (this is indicated by the studies summarized by Scherer, WRP 2019, 277, 279).
However, the current legal situation does not provide a starting point for taking this circumstance into account in the context of Sections 5, 5a UWG, which only protect the basis for the decision of the market opponent.
Moreover, the assumption that this commercial purpose is directly recognizable means that not all communication acts of an influencer, who, as described above, always pursues the purpose of promoting his own company, are subject to labelling, which would in fact lead to a devaluation of the labelling obligation and further market confusion.
116
(b) However, the situation is different for the further commercial purpose of acting for the benefit of the companies of certain third parties and promoting the sale of their products.
This commercial purpose does not arise directly from the circumstances (also OLG Braunschweig, Urt. v. 13.05.2020, 2 U 78/19 – Fitnessinfluencerin, MDR 2020, 872, juris-Rn. 53 et seq.).
117
As explained above, the particular attractiveness of influencers’ accounts for other users results from the design of the account with images, videos and accompanying texts.
By regularly posting information, the influencer makes himself and his account interesting for his followers.
This may be because the influencer looks good by common standards and posts “beautiful” pictures of themselves, because they can give their followers the impression that they are becoming just as beautiful, because they share a varied, luxurious or exciting life that their followers do not have, or because they share the less beautiful moments of life and show their followers that they are not alone with their weaknesses, suffering or problems.
However, the influencer always creates a special willingness on the part of their followers to take note of the influencer’s messages and approach them in a benevolent manner.
The advertising messages contained in the posts benefit from the goodwill advantage, whereas conventional advertising first has to overcome the reluctance of the addressees.
While the advertising message of a person who is prominent for other reasons (so-called celebrity endorsement) often seems artificial and appears to be what it is by definition, namely bought, influencers face their followers within the social network at eye level and appear authentic.
In their posts, influencers present themselves as private individuals who merely share their lives, but at the same time present third-party products (see also OLG Braunschweig, Urt. v. 13.5.2020, 2 U 78/19 – Fitnessinfluencerin, MDR 2020, 872, juris-Rn. 64).
118
It is therefore in the nature of the influencer’s posts that they contain advertising messages in favor of certain third-party companies and content.
This applies in particular to the image components of posts on Instagram.
Only influencers who are very successful in the fields of cosmetics and clothing will be literally decked out from head to toe. In most cases, the design elements recognizable in images and videos, from the chosen setting to all clothing components, make-up and accessories, will represent a mixture of “private” life circumstances and personal items of the influencer on the one hand and items with which a commercial purpose is pursued for the benefit of third-party companies as described on the other.
119
Because this is the case, the targeted public does not assume that the influencer is pursuing a commercial purpose of promoting sales with regard to all products recognizably depicted in the design of the post.
On the contrary, up to a point – also perceived by influencers – the members of the community consider the influencer, as he presents himself in his posts, to be “authentic”, to be “one of them”, who has just managed to receive considerable remuneration for what everyone wants.
120
The competitive threat situation therefore results precisely from the mixture of private appearance and communication elements untouched by third-party interests on the one hand and communication elements influenced by third-party interests on the other.
This risk situation, which is created by the influencer’s business model, requires a comprehensive obligation to disclose the influencer’s economic relationships with third-party companies in order to limit it (KG, judgment of January 8, 2019, 5 U 83/18 – #vrenifrost, GRUR 2019, 543, 545).
121
(c) With regard to the commercial purposes to be distinguished, it cannot be assumed that the above-mentioned understanding of the relevant public that the defendant is pursuing the commercial purpose of promoting its own sales is sufficient to make it “bad faith” and thus meet the requirements of Section 5a para.
6 UWG (unlike OLG Munich, judgment of. 25.06.2020, 29 U 2333/19 – Blauer Plüschelefant, juris-Rn. 48; LG Munich I, Urt. v. 29.4.2019, 4 HK O 14312/18 – Cathy Hummels, GRUR-RR 2019, 332, 334, but without differentiating the commercial purposes concerned).
It is not sufficient for the addressees to be able to infer from the circumstances that a commercial purpose is being pursued at all; instead, every commercial purpose pursued with an act of communication must be recognizable.
In this respect, the protective purpose of Section 5a para.
6 UWG.
122
The provision takes into account the need for protection that arises from the fact that consumers tend to be skeptical, reserved and have reservations about commercial approaches and statements, whereas statements that appear to be made without commercial intent are more open, positive and regularly trusting.
This protective purpose requires that the obviousness of the commercial purpose must be concrete and product-related.
Even in the case of traditional editorial media such as newspapers or magazines, the addressee knows that they may pursue a commercial objective, but rightly assumes that this objective does not affect the content of the reporting (see above). In order to effectively protect competition in accordance with Section 1 UWG, the legal system must always ensure that the “natural” defensive reflexes against advertising messages are not switched off with regard to each of several commercial purposes pursued with an act of communication.
123
(d) It must therefore be determined whether the commercial purpose of promoting the sale of those products that are highlighted after clicking on the buttons in the posts of 14.12.2017, 13.01.2018 and 04.03.2018 is recognizable.
The external appearance of the commercial activity must be taken into account (OLG Braunschweig, Urt. v. 13.05.2020, 2 U 78/19 – Fitnessinfluencerin, MDR 2020, 872, juris-Rn. 63; LG Hagen, Urt. v. 13.09.2017, 23 O 30/17, GRUR-RR 2017, 510, 511).
124
In all of the posts at issue, the defendant deliberately presents herself as a private individual based on her external appearance.
The images appear to depict scenes from the defendant’s private life in which she wants her followers to participate.
In addition to the content of the images, the accompanying texts in two out of three of the posts in dispute also contribute to this, which aim to create a seemingly private relationship between the defendant and her followers.
Neither the content of the images nor that of the accompanying texts have any reference to the linked companies.
At first glance, it is therefore not apparent that the predominant aim of these images is to advertise the linked companies.
In this respect, the case is different from that of a company website, for example, which the average reasonable user recognizes from the outset as commercial communication (see LG Hagen, judgment of 13.09.2017, 23 O 30/17, GRUR-RR 2017, 510, 511).
This means that the external appearance of the commercial act is designed in such a way that the consumer cannot clearly and unambiguously recognize the commercial purpose of the promotion of third-party companies.
125
The marking of the account with a blue checkmark is also not able to make the commercial purpose clear.
Irrespective of the fact that the blue checkmarks merely indicate verification, which not only commercial account holders but also celebrities can achieve, the checkmark – possibly in conjunction with the high number of followers and the defendant’s prominence among her addressees – can only document that she herself runs a business as an influencer.
The conspicuous mixture of personal statement elements within the posts and statement elements that have the character of commercial acts and with which a commercial purpose is pursued is not resolved by the checkmarks.
126
The references contained in some posts to a paid partnership of the defendant with third-party companies are also not sufficient to eliminate the specific lack of transparency with regard to the scope of the commercial purpose of promoting third-party competition.
On the contrary, these references obviously do not correspond to the scope of the commercial purpose established above, because the defendant only uses such references in cases in which it actually receives remuneration.
In fact, however, the objective connection with the promotion of third-party sales is already to be affirmed if there is merely a surplus of advertising, i.e. products of certain companies are emphasized in a way that is not required by the respective object of the communication. This is the case with the tap tags at issue (see above).
127
The use of tap tags is also not a circumstance that in itself makes the commercial purpose of the sales promotion immediately recognizable.
On the one hand, the tap tags lack an advertising reference at the right time, i.e. immediately when the visible tap tag appears, i.e. after clicking on the image for the first time.
Only after clicking on the tap tag does the company account of the linked product manufacturer appear.
It is also by no means immediately apparent that the defendant inserts all tap tags in order to promote the sales of companies.
The defendant also occasionally links its tap tags to Instagram accounts that are not operated by companies that sell products commercially to followers, in particular that of its manager or that of its mother.
128
e) The failure to disclose the commercial purpose of the commercial acts at issue is likely to cause the consumer to make a commercial decision that he would not have made otherwise.
129
(1) Whether the failure to disclose the commercial purpose of a commercial act is likely to induce the consumer to take a transactional decision that he would not have taken otherwise depends on the circumstances of the individual case.
However, a mere noticeable impairment of interests is not sufficient.
Rather, the impairment of the decision-making process is required (Micklitz/Namysłowska, in: Spindler/Schuster, Recht der elektronischen Medien, 4th ed., 2019, Section 5a UWG para. 53).
An element of causality is required: the inadequate disclosure must be capable of causing the consumer to make a decision that would otherwise not have been made (Harte/Henning/Frank, Section 5a para. 273; Sosnitza, in: Ohly/Sosnitza, UWG, 7th edition, 2016, Section 5a para. 98).
However, the mere suitability of the commercial act is sufficient for this (Harte/Henning/Frank, Section 5a para. 275).
The yardstick for the assessment is an average member of the addressee addressed pursuant to Section 3 para.
4 UWG.
130
(2) Due to the lack of labeling as advertising, visitors to the defendant’s account are first of all prompted to pay more attention to the post than if it were labeled and then to attach greater importance to the information contained therein in view of the impression of a private report than to a post labeled as advertising.
For example, the text accompanying the post from 13.01.2018 contains comments about the weather and a recommendation for a hotel in [Ort].
The text under the post of 04.03.2018, in which the defendant can be seen in front of a commercial hall, is about the importance and value of failure.
Furthermore, the tap tags only become visible to the viewer when they click on the image with the mouse or on a touchpad with a finger. It is precisely the unrecognizable connection of the tag with the published content that is likely to initially arouse the visitor’s curiosity and encourage him to visit the linked Instagram accounts by clicking on them again to find out more (KG, Urt. v. 08.01.2019, 5 U 83/18 – #vrenifrost, GRUR 2019, 543, 545).
131
If the consumer then visits the linked accounts, he is exposed to the advertising of a third-party company, which is intended to induce him to purchase its products (see BGH, Urt. v. 31.10.2012, I ZR 205/11 – Preisrätselauslobung, GRUR 2013, 644, 647).
In addition, the Instagram accounts in question regularly contain further links that enable consumers to access the manufacturer’s online stores and purchase the products advertised on the account there (see OLG Braunschweig, decision of 8 January 2019, 2 U 89/18, MMR 2019, 467, 467).
132
Finally, the Instagram accounts of some companies already directly display prices and offers for the goods to be purchased.
This applies in any case to the account “[C .]” linked in the defendant’s post of 14.12.2017, to the accounts “[D .]” and “[E .]” linked in the post of 13.01.2018 and to the account “[F .]” linked in the post of 04.03.2018.
By clicking on the bag symbol on the account of the fashion companies, the Instagram user can even view products with prices directly on the Instagram account.
In this respect, the company’s Instagram account already has the appearance of an online store.
The Instagram platform itself also refers to this as a “store”.
In Instagram’s terms of use, there is a section entitled “Instagram Shopping”, which explains the following about this function, among other things: “Instagram Shopping provides your business with an engaging storefront that showcases your best products. […It’s] a product description page that features: An image of the product from your post; A description of the product; The price of the product; A link that takes users directly to your website where they can purchase the product.”
133
By clicking on the product in the “Shop” area of Instagram, the consumer has the further option of selecting the “View on website” button and thus being taken directly to the company’s external online store.
134
In this way, tap tags make it easier for the consumer to purchase a product online.
They are therefore likely to induce the consumer to take transactional decisions that he would not have taken otherwise.
Contrary to what the appeal assumes (AS. 32 f.), visiting a website is not only to be equated with entering a store with regard to the quality as a business decision if the website provides an immediate opportunity to purchase.
Following the European Court of Justice, the Federal Court of Justice has already clarified that the term “business decision” also covers decisions directly related to the decision to purchase or not to purchase, such as access to a product offered on the Internet via an overview page in order to deal with the product in detail (BGH, judgment of 07.03.2019, I ZR 184/17 GRUR 2019, 746, 749 – Energieeffizienzklasse III; see also Köhler, in: Köhler/Bornkamm/Feddersen, Section 2 para. 159).
In any case, this can include official Instagram accounts of companies that have a “shopping” area.
135
In view of the intuitive operation, especially on mobile devices, via which Instagram is primarily used, which makes it easy and quick to reach the online stores of the promoted companies, the assumption of a mere preparatory act for a commercial act appears to be ruled out on the basis of recent supreme court case law (see above).
136
d) The structure of the prohibition provision and the limitation of the legal dispute by the plaintiff’s application for injunctive relief stipulate that it is not the Senate’s task to determine or prescribe how the required labeling is to be carried out (see also LG Munich I, judgment of 29.4.2019, 4 HK O 14312/18 – Cathy Hummels, GRUR-RR 2019, 332, 334).
With regard to the subsequent examination against the standard of fundamental rights, however, the decisive factor is which barriers result from a judicial prohibition.
With regard to this, it is sufficient to state that, in view of the manageable number of tap tags that refer to Instagram accounts of companies and with which, for the reasons mentioned, the commercial purpose of promoting their product sales is pursued, specific clarifying references in the text part of the post are easily possible and reasonable (Henning-Bodewig, WRP 2017, 1415, 1419).
They may also state that no payment was made by the linked company or that there is no advertising partnership (unlike LG München I, Urt. v. 29.4.2019, 4 HK O 14312/18 – Cathy Hummels, GRUR-RR 2019, 332, 334 f).
137
f) The prohibition under fair trading law does not affect the defendant’s fundamental rights.
138
aa) It is irrelevant whether Instagram accounts fall within the scope of protection of freedom of the press or freedom of broadcasting under Art. 5 para.
1 GG.
This is because Art. 5 para.
1 GG does not apply in the present case.
As already explained, Section 5a para.
6 UWG serves to implement Art. 7 para.
2 UCP Directive.
When interpreting national law that serves to transpose directives of Union law, Art. 51 para.
1 sentence 2 CFR, the fundamental rights laid down therein must be observed.
Therefore, insofar as the freedom of expression and reporting is at issue, the relevant provisions in Art. 11 para.
1, para.
2 GRCh are to be applied (BGH, Urt. v. 19.05.2011, I ZR 147/09 – Coaching-Newsletter, GRUR 2012, 74, 77; KG, judgment of 08.01.2019, 5 U 83/18 – #vrenifrost, GRUR 2019, 543, 545; Köhler, in: Köhler/Bornkamm/Feddersen, § 3 para. 1.22).
139
bb) According to Art. 11 para.
1 sentence 1 CFR, everyone has the right to freedom of expression.
According to Art. 11 para.
2 CFR, the freedom of the media and its plurality are respected (KG, judgment of 08.01.2019, 5 U 83/18 – #vrenifrost, GRUR 2019, 543, 545).
The scope of protection is therefore open in the present case.
140
cc) However, restrictions on freedom of expression and media freedom are permissible if the requirements of Art. 52 para.
1 CFR.
It follows from this that freedom of expression may be subject to certain restrictions justified by objectives in the public interest, provided that these exceptions are provided for by law, correspond to one or more legitimate objectives under Art. 52 para.
1 CFR, are justified by an urgent social need and are proportionate to the legitimate aim pursued (BGH, Urt. v. 18.11.2010, I ZR 137/09 – Unser wichtigstes Cigarettenpapier, GRUR 2016, 631, 633; v. Coelln, in: Stern/Sachs, GRCh, 2016, Art. 11 para. 54).
141
(1) The rights granted under Art. 52 para. 1 CFR, the legal basis for the prohibition is – as can be seen from the above – provided by Section 5a para.
6 UWG, which implements Art. 7 para.
2 of the UCPD.
142
(2) The restriction of the defendant’s freedom of expression and media freedom by the contested ban satisfies the principle of proportionality under Art. 52 para.
1 sentence 2 CFR.
The prohibition pursues objectives that are recognized as being in the public interest, namely the protection of the economic interests of consumers by protecting their freedom in commercial decisions.
With regard to misleading omissions, the Unfair Commercial Practices Directive sets out a certain amount of basic information that consumers need in order to be able to make an informed transactional decision, cf.
14 UCPD.
The Directive thus follows the requirement of Art. 38 CFR to ensure a high level of consumer protection (see also ECJ, judgment of. 23.10.2003, C-245/01 – RTL Television GmbH ./. Niedersächsische Landesmedienanstalt für privaten Rundfunk, GRUR Int. 2004, 242, 244 f.).
Moreover, the prohibition does not concern the content of the communication, but merely obliges the defendant to label the message as advertising (see also ECJ, loc. cit., GRUR Int. 2004, 242, 245).
Fulfilling the obligations under fairness law by labeling the tap tags neither unduly burdens the defendant, nor does it lead to a meaningless and rather confusing labeling of all statements by influencers.
The prohibition under fair trading law therefore appears appropriate.
143
g) In order to create a secure legal framework for unpaid recommendations on the internet by bloggers and influencers, the Federal Ministry of Justice and Consumer Protection submitted a regulatory proposal on February 13, 2020, according to which Section 5 para.
6 UWG would be clarified in such a way that a “commercial purpose of a commercial act […] is generally not to be assumed [ist] if it primarily serves to provide information and form opinions and no remuneration or similar consideration was granted for this” (https://www.bmjv.de/SharedDocs/Gesetzgebungsverfahren/Dokumente/Regelungsvorschlag_Influenzer.pdf). Such a clarification would also correspond to the case law for contributions in print media, where an exception to a commercial act and thus the application of the law against unfair competition is generally assumed, provided that the exercise of freedom of information and freedom of the press does not take a back seat to the recognizable intention to promote the sale of one’s own press product.
The criterion that the statement primarily serves to form information and opinions will be verifiable on the basis of objective factors and prevent the exception from being applicable in the case of statements with a strongly promotional tone, such as exaggerated praise.
144
The proposal does not have any binding effect.
However, the Senate believes that its reasoning to establish equal treatment between modern media and traditional media via the aspect of excess advertising with regard to the promotion of third-party competition is confirmed.
In the present case, the surplus advertising does not result from the defendant’s postings as such, i.e. their content design, but from the use of tap tags, which is the only aspect under attack.
145
h) There is also a risk of repetition pursuant to Section 12 para.
2 UWG. In a letter dated 21.03.2018, the plaintiff requested the defendant to submit a cease-and-desist declaration with penalty clause by 28.02.2018 (LG AS K 7).
The defendant did not comply with this.
Instead, in a letter dated 05.04.2018, it stated that it was not aware of any violation of Section 5a para.
6 UWG (LG AS K 8).
146
Whether the plaintiff is also entitled to further injunctive relief, in particular under Section 5a para.
2, para.
4 UWG in conjunction with § Section 6 para.
1 TMG can be left open after all this.
147
Consequently, the plaintiff is also entitled to reimbursement of pre-trial costs due to the warning of the asserted infringements under Section 12 para.
1 sentence 2 UWG in the amount of EUR 178.50.
The claim has been subject to interest since July 6, 2018 in accordance with Section 291 BGB.
The action was served on the defendant on 05.07.2018 (LG AS 55-58).
148
The decision on costs follows from section 97 para.
1 ZPO. The order of provisional enforceability is based on Sections 708 No. 10, 711 ZPO.
149
The appeal must be allowed. Pursuant to Section 543 para. 2 ZPO, an appeal must be allowed if the case is of fundamental importance or if the further development of the law or the safeguarding of uniform case law requires a decision by the court of appeal (see Krüger, in: MüKo-ZPO, Section 543 para. 7). To date, there is no supreme court case law on the question of the extent to which the use of tap tags that are not labeled as advertising in Instagram posts by influencers can be unfair. This is a legal question that requires clarification. It has not yet been decided by the Federal Court of Justice and has been assessed differently by the higher regional courts (see KG, judgment of 8 January 2019, 5 U 83/18 – #vrenifrost, GRUR 2019, 543; OLG Braunschweig, decision of 8 January 2019, 2 U 89/18, MMR 2019, 467; OLG Frankfurt, decision of 23 October 2019, 6 W 68/19 – disguised advertising as an “influencer”, BeckRS 2019, 26975). The relevant questions are also not questions of fact that depend on the individual case.