In line with the BGH judgments Influencer I-III, it is now also expressly regulated by law in Section 5a para. 4 UWG that commercial advertising must be identified:
“Unfair acts also whoever fails to disclose the commercial purpose of a commercial actunless this is immediately apparent from the circumstances and the failure to disclose is likely to induce the consumer or other market participant to take a transactional decision that he would not have taken otherwise.”
§ 5a para. 4 UWG
Essentially, anyone who fails to identify the commercial purpose of a commercial act is acting unfairly and therefore unlawfully.
What does that mean?
The standard can be clearly explained using social media posts. This is also the use case that the legislator had in mind when drafting the standard (see explanatory memorandum, p. 35). Influencers are often paid on social media channels to use/discuss certain products in their posts and thereby advertise them to their followers.
The fact that this is advertising for a fee is sometimes not immediately apparent. However, this is not acceptable from the point of view of consumer protection. In the area of social media, the attraction is precisely to accompany famous personalities as “closely” as possible in their private everyday lives. This creates imitation effects, for example, which lead to economic decisions on the part of followers. To this end, a certain amount of clarification should be provided as to which posts and content are financed by advertising content and which are not.
When is advertising obviously advertising?
However, this is not the only requirement. Commercial purposes do not have to be identified if the commercial purpose “arises directly from the circumstances”. However, this is where the legal certainty that is now to be created reaches its limits. Is the commercial purpose not immediately apparent from every post by a major influencer about a specific product? Is advertising for a mobile game immediately recognizably commercial?
A further requirement, which is unlikely to have a wide scope of application, is that market participants must be induced to make business decisions that they would not otherwise have made. This requirement must be interpreted broadly in accordance with the BGH’s influencer rulings. A business decision can already be made by clicking on a link. There does not have to be a “genuine” legal transaction between a market participant and another company.
The commercial purpose
In § 5a para. 4 sentence 2 UWG “defines” the commercial purpose. The legislator has used a so-called negative definition here, namely it excludes when there is no commercial purpose. In short, there is no commercial purpose if the influencer does not receive any remuneration or similar consideration directly or indirectly or cannot be promised such.
Important: A consideration from an independent third party is therefore not subject to a commercial purpose.
The commercial purpose is also broadly defined by the concept of consideration. The mere provision of the product free of charge therefore already falls within the scope of the law.
Important: If there is no commercial purpose, i.e. no remuneration and no consideration, a labeling obligation may still apply. This is the case if the influencer pursues the purpose of promoting their own company. The definition of commercial activity in Section 2 para. 1 No. 2 UWG must be taken into account. This means that self-promotion must also be labeled, except in cases where the business activity is directly recognizable as self-promotion, which means in principle, if applied without restriction, that every social media post must be labeled as (self) promotion.
The burden of proof regulation of § 5a para. 4 SENTENCE 3 UWG
Ultimately, it is assumed by law that a commercial purpose exists. If an influencer receives a warning due to such an infringement, they must rebut this presumption. The purpose of this regulation is that in practice, it will often not be possible to prove the commercial purpose, for example the receipt of remuneration.
What can influencers expect from the new regulations?
The legislator has managed to create some legal clarity. However, it has also decided to demand a little more labeling rather than too little. For influencers, however, this means that it is better to label more social media posts as advertising than too little. The law does justice to the protection of users of social media platforms from unnoticed influence through the labeling requirements.
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.