In today’s digital world, advertising in social media is becoming increasingly important. It is important to ensure that the advertising measures taken comply with the applicable provisions of competition law.
In principle, advertising must not be misleading. This means that it must not mislead the consumer about
- the essential properties,
- the prices or
- the conditions of a product or service
may deceive. Sections 5b and 5c UWG, which came into force in May 2022 and are based on the Act to Strengthen Consumer Protection in Competition and Trade Law, are particularly aimed at this and make it clear at this point that the legislator is specifically seeking to prevent unfair advertising measures in social networks.
Testimonials and influencer marketing
A popular tool for enriching digital advertisements is the use of testimonials, which are used to promote a product or service. The use of testimonials significantly increases the credibility of the company and the message associated with the advertisement. However, it is important that they are based on real facts and are not bought. Testimonials that suggest a relationship with the advertised company that does not actually exist are anti-competitive under Section 5 UWG.
Even the claim “in collaboration with…” can be a testimonial and – if used without authorization – may violate competition law, trademark law or copyright law, depending on the constellation.
Here is an example from current case law: The Neuruppin Regional Court recently ruled that the mere distribution (“reposting”) of press articles without advertising effect is permissible. With regard to neutral statements contained therein, the court emphasized that it is not possible to mislead through truth, even if this “truth” makes the person concerned appear in a good light (judgment of 28 July 2022 – 2 O 130/22).
Influencer marketing is also enjoying some popularity. It is important to ensure that the promoters clearly indicate that this is paid advertising. The influencers themselves must also not make any false or misleading statements about the advertised product/service. This also applies in particular to products that are given to influencers for advertising purposes, as the Federal Court of Justice emphasized last year (BGH, judgment of 13.01.2022 – I ZR 35/21).
Astroturfing: The creation of false ratings and opinions
Unlawful PR methods also include so-called “astroturfing” – derived from the English word for artificial turf – on social media. Astroturfing describes the creation of seemingly independent online reviews or opinions that were actually created by the advertising company or its agents.
Let’s take Facebook as a practical example: Artificial profiles are created on the platform, which can then be purchased by companies, sometimes even in the form of several “profile packages”. Certain products/company pages/services are then liked, commented on or shared via the artificial users. If this is done by a corresponding number of “fake profiles”, this gives other Facebook users the impression that the positive evaluation of a product/company/service is based on real customer experiences and can strongly influence their purchase decision.
In the past, the FDP and Deutsche Bahn, for example, were suspected of promoting their own image through astroturfing. However, the allegations could not be proven.
Liability for employees
Particular care should be taken to ensure that your own employees do not disseminate anti-competitive advertising on private social media accounts, for example by posting sales advertisements on their own initiative and not providing all the information required by law. Purely private social media activities are not subject to the scope of protection of the UWG, however, if a business character is recognizable, the Internet activities of the employees can be attributed to the company via Section 8 para. 2 UWG (LG Freiburg, judgment of 04.11.2013 – 12 O 83/13).
It is difficult for companies to evade this responsibility externally, which is why it is advisable to have comprehensive internal social media guidelines.
Advertising on social media: What companies need to consider
Social media are now so integrated into our everyday lives that it is hard to imagine life without the relevant platforms. It is therefore also a great advantage for companies to use social media to advertise as closely as possible to their customers. However, as shown above, there are a number of aspects that need to be taken into account, which can lead to the inadmissibility of advertising measures – and thus possibly result in sensitive claims for injunctive relief or damages. In conclusion, the most important recommendations for advertisers in brief:
- Make sure that all legally required information is provided.
- Avoid accusations of misleading advertising by relying only on authentic reviews/cooperation partners.
- Talk to your employees about their behavior on the Internet in relation to the company and set comprehensive social media guidelines.