Even before the amendment to the UWG, the BGH had already dealt with commercial advertising postings on social media platforms. In the so-called influencer rulings, it developed principles that are reflected in the new version of the UWG.
The problem: advertising disguised as a social media post
The so-called influencer judgments of the Federal Court of Justice continue to be relevant in connection with the 2022 UWG amendment. Influencers have come into the spotlight due to the fact that they were found to be unconsciously influencing consumers. Social media posts are characterized by the fact that a special closeness to the person’s life is suggested. This can lead to imitation effects. As a result, the question arose as to when advertising is present, so that influencers are then subject to a labeling obligation. The Federal Court of Justice primarily assessed whether advertising is present based on the question of whether a consideration was received for the social media post (Influencer I and II). In its most recent ruling to date, the BGH then determined when this should also be extended (Influencer III).
In all three rulings, a competition association took legal action against potential commercial actions by various influencers on Instagram. The BGH’s influencer case law began with the Influencer I and II rulings from September 9, 2021 (Ref.: I ZR 90/20 and I ZR 125/20).
When is a social media post legally classified as advertising (BGH, Influencer I and II)?
In the first two rulings, the fundamental question arose as to when a post on social media is advertising and when or how this should be labeled.
According to the BGH, a post is in any case advertising and therefore a commercial act within the meaning of the UWG if the influencer receives something in return for the post. On the other hand, consideration is not mandatory. A contribution can also constitute a commercial act in favor of a third-party company if the contribution “is excessively promotional in terms of its overall impression, i.e. contains a promotional surplus, so that the promotion of third-party competition necessarily plays a greater than just a necessarily accompanying role”.
When an advertising surplus exists must be assessed on a case-by-case basis. So-called “tap tags”, such as those used on Instagram, were initially not sufficient for the BGH to assume an advertising surplus. However, if the “tap tags” contain links to the websites of the manufacturers of the products depicted, an advertising surplus can regularly be assumed.
If the commercial purpose is not made clear, this is regularly likely to cause the consumer to make a commercial decision that they would not otherwise have made. What is interesting here is that the commercial decision already consists of clicking on the link.
Promoting your own company as a commercial purpose (Influencer III)
In this relatively new Influencer III ruling by the BGH from January 13, 2022 (case reference: I ZR 35/21), it builds on previous case law and expands on it. In its ruling, the BGH also recognized that the UWG amendment was imminent and endeavoured to align its case law with the upcoming new regulations.
The case was again about social media posts; the initial problem here was when the influencer’s own company was being promoted. According to the BGH, such promotion can also exist if there is no commercial communication due to a lack of consideration. This is not to be assessed differently if editorial contributions are partially published via the same social media profile.
Does advertising only exist if there is a consideration?
The Federal Court of Justice further reinforces its view that commercial communication to promote a third-party company can also exist without the existence of a consideration. Reference is then again made to the “advertising surplus”.
However, the BGH also sees an exception to the labeling obligation. In any case, if the commercial purpose of the post can be clearly recognized at first glance, there should be no labelling obligation. The reverse exception: However, the labeling obligation must remain in place if there is a frequent mixture of non-advertising and advertising posts on the same social media profile. In this case, an “analytical study” of a post would again be necessary to identify the commercial purpose.
The significance of the Influencer I-III judgments for the new UWG
Even if the amendment to the UWG codifies the principles of the above case law, the judgments remain highly relevant. The UWG amendment only extends to the fact that advertising must now be made more prominent. This means that the first two influencer judgments have been implemented in law.
However, the scope of the duty of identification remains unclear. In this respect, it is still possible to fall back on case law. This emphasizes the consideration of the respective individual case, but can at least be applied to identical comparable cases.
Case law will remain important with regard to obviously advertising posts. The new UWG stipulates that there is no labeling obligation if the commercial purpose is directly apparent from the circumstances. If the BGH sticks to its case law, there will still be an obligation to label advertising posts, at least in the case of social media profiles with mixed non-advertising and advertising posts.
Focus on competition law
In our focus topic “Requirements in competition law“, we look at the changes resulting from the latest amendment to the UWG and present the challenges for companies and entrepreneurs. So far, this series has included an overview of consumer compensation and fines regulations, influencer case law and the associated changes to the UWG (also) for influencers, necessary adjustments in e-commerce and restrictions on the sale of dual quality products.