OLG Karlsruhe: “Tap tags” justify labeling obligation as advertising

On the question of when posts on Instagram must be treated as advertising, the Higher Regional Court of Karlsruhe has now added an opinion that influencers should be aware of.

After influencer Pamela Reif had already suffered a defeat before the Regional Court of Karlsruhe (judgment of March 21, 2019, Ref.: 13 O 38/18 KfH), her appeal has also failed. The 6th Civil Senate of the Higher Regional Court of Karlsruhe confirmed the plaintiff’s view that the influencer had acted unfairly because she had not labeled various Instagram posts as advertising (judgment of September 9, 2020, Ref.: 6 U 38/19). Specifically, the Verband Sozialer Wettbewerb (VSW) accused Reif of violating Section 5a para. 6 UWG had been breached.

The use of “tap tags” constitutes a commercial act

The first major point of contention was the question of whether the use of so-called “tap tags” constitutes a commercial act at all. These are described by the OLG as follows:

“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.”

Pamela Reif took the view that these tap tags were merely a private expression of opinion. This was because she wanted to avoid questions from her followers. However, the court took a different view: in any case, with an Instagram business account and thousands of followers, there would be a business connection both with regard to her own activities as an influencer and with regard to the tagged companies. The aim was to increase both one’s own value as an influencer and the turnover of the tagged companies.

Advertising is not immediately recognizable – labeling is a must

However, an advertising label could still be avoidable if the advertising character would be immediately recognizable to users. Most recently, for example, the Regional Court of Munich I made a completely different decision on this issue (judgment of April 29, 2019, Ref.: 4 HK O 14312/18): According to the judges, consumers would now be so accustomed to influencer marketing that anyone with an Instagram profile with a blue tick and thousands of followers would immediately know that the posts must be commercial.

The judges at Karlsruhe Higher Regional Court explicitly do not share this view. It is true that children and young people also know that and how big influencers earn their money, so that the self-promotion is obvious and therefore not subject to labeling. However, this is different with regard to the advertising effect for third-party companies. Influencers have such an impact precisely because they are perceived (up to a certain point) as “authentic” and as “one of them”. Private and commercial products and experiences are mixed, so that it is no longer clear when a commercial purpose exists.

Appeal allowed: Tap tags will probably be heard by the BGH

As the case law, including that of the higher regional courts, is still very inconsistent, an appeal to the Federal Court of Justice has been permitted. It is very much to be hoped that this path will also be taken in order to obtain a little more legal certainty and clarity. Until then, influencers should consistently label all posts with tap tags as advertising. Regardless of whether they have received money or other benefits for the post or are doing so on their own initiative.

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