Influencers like to recommend what they like on Instagram and put the right link directly to it. But are they allowed to do that too – or is that surreptitious advertising? The BGH has dealt with this question.
Karlsruhe – The Federal Court of Justice (BGH) wants to comment today on whether influencers on Instagram are allowed to provide recommendations for products with links to the provider. The Association of Social Competition accuses them of inadmissible surreptitious advertising and demands an omission as well as the warning costs.
Specifically, in Karlsruhe there are lawsuits against the influencer Cathy Hummels from Upper Bavaria, who is also known beyond the Internet, the Hamburg fashion influencer Leonie Hanne and the Göttingen fitness influencer Luisa-Maxime Huss.
The procedure is of fundamental importance for the industry. The competition association has warned numerous influencers for surreptitious advertising. Specifically, it is about so-called tap tags, those inconspicuous notices that can be used to redirect you to a company account with one click. Like the three defendant women, many celebs regularly post it on Instagram.
Courts judge differently
The highest civil judge in Germany must decide whether these linked references must be marked as advertising. The presiding judge Thomas Koch had said in the BGH hearing at the end of July that “maybe something could speak” for the fact that the link to the tap tags had crossed a limit to advertising. In the lower courts, the courts had ruled differently on influencer marketing. So Hummels won in both lower courts and Hanne before the Hamburg Higher Regional Court. In the Huss case, the competition association emerged victorious in both instances.
At the negotiation at the end of July, Huss and Hummels emphasized that paid advertising must be marked as such. “But it is just as important that you can still develop your free opinion,” explained Hummels. Huss, who was the only one to appear in Karlsruhe, rejected the allegation of surreptitious advertising for recommendations without consideration. They use tap tags to make it easier for users to get to a page, explained Huss. In this context, she argued with transparency towards her followers.
The lawyer of the competition association, however, emphasized before the BGH that it must be made clear if commercial purposes are being pursued. “With the posts private messages and advertising are mixed up”, he criticized – and referred to deceived consumers. dpa
