Advertising marking for influencers: lawyer for surreptitious advertising and labeling obligations

Mark advertising: What influencers, brands and agencies need to know

The labeling requirement is the legal issue that affects creators most frequently and costs money most often. The principle is simple: Anyone who receives a consideration for a contribution must make the commercial purpose clear, unless it is already clearly derived from the circumstances. In practice, however, delimitation is difficult, because consideration is not just money. Free products, travel, discounts, commissions or the prospect of a future cooperation can also suffice.

Since the reform of the law against unfair competition (UWG) in May 2022, a clear line has been in force: if an influencer receives neither money nor similar consideration for a product presentation, it is assumed that there is no commercial purpose. This assumption helps many creators, but does not protect them from every cease-and-desist letter. Because in addition to the UWG, the Digital Services Act (DDG) and the Media State Treaty (MSV) apply, and the state media institutions sometimes interpret them more strictly.

We advise influencers, content creators, brands and agencies on how they characterize contributions in a legally secure manner. We review individual posts, develop labeling guidelines for entire campaigns and defend them against cease-and-desist letters and procedures from media supervision.

Typical situations in which we help

• You have received a PR package and do not know if you need to mark the post as advertising.
• You advertise your own products, your online shop or your coaching offers.
• You use affiliate links or discount codes and receive commissions.
• You have received a cease-and-desist letter for surreptitious advertising or a letter from the state media authority.
• You are a brand or agency and want to make sure your creators are correctly labeled because you are sticking to yourself.
• They stream live on Twitch or YouTube and show sponsors.

Legal basis at a glance

Section 5a (4) UWG: Identification of the commercial purpose

Unfair, anyone who does not identify the commercial purpose of a business action unless it results directly from the circumstances, and if the noting is suitable to cause consumers to make a business decision that they would not otherwise have made.

Since 2022, the provision has included an important rule of assumption: If the actor does not receive any remuneration or similar consideration from the company, a commercial purpose is not assumed. In particular, commissions and goods and services that are made available free of charge are considered similar consideration. A clever PR package is therefore regularly included.

The key decisions of the Federal Court of Justice

On September 9, 2021, the BGH decided in three proceedings how influencer contributions are to be assessed (Az. I ZR 90/20, I ZR 125/20 and I ZR 126/20). Core statements: Influencers who show products and link manufacturers, act in favor of their own company because they promote their image as an advertising medium. Whether you also have to support third-party companies and therefore mark them depends on whether you receive a consideration for them or whether the contribution is exaggeratedly advertised. A link to the manufacturer’s website speaks in particular for an advertising surplus.

Media law: § 6 DDG and §§ 8, 22 MStV

For telemedia, § 6 DDG stipulates that commercial communication must be clearly recognizable as such. The State Treaty on Media also requires that advertising be easily recognizable as such and is clearly separated from the rest of the content. Product placement rules apply to videos. The state media institutions, which can impose fines, are responsible for supervision. Your guide recommends the terms “advertising” or “advertisement”, clearly visible at the beginning of the post.

What the marking should look like

The decisive factor is that an average user recognizes the advertising character at first glance, on the smartphone and without folding up. “Advertising” or “Advertisement” have proven themselves at the beginning of the caption and as a display in the picture or video. English terms such as #ad, #sponsored or hidden hashtags at the end of a long text are not enough, according to the prevailing opinion. Platform functions such as “paid partnership” make sense, but do not replace your own labeling in every case.

Who is liable?

In addition to the influencer, the advertising company is also regularly liable, because competition violations must be attributed to by representatives under Section 8 (2) UWG. It is therefore important for brands and agencies to include clear labeling requirements in the contracts and to monitor compliance with them.

That’s how we go

1. 1

   Initial assessment

   You briefly describe the facts to us and send documents such as a contract, cease-and-desist letter or screenshots. We will tell you promptly where you stand and what the next steps will cost.

2. 2

   Secure evidence and deadlines

   We document posts, stories and chat history in court and record all deadlines. Content disappears quickly, especially with social media.

3. 3

   Set strategy

   Together we decide whether negotiation, defense, cease-and-desist letter or contract drafting is the right way. It is always about your reach and your business relationships.

4. 4

   Implement and enforce

   We negotiate, formulate, answer and, if necessary, go to court, also in an urgent procedure. You will regularly be informed of what is happening.

Regarding the costs: Before every step we tell you what it costs. Depending on the case, we charge a flat-rate fee or by hourly rate according to the Lawyers’ Remuneration Act (RVG). If the opponent is obliged to reimburse, for example in the case of a justified cease-and-desist letter, we will claim these costs for you. More on this on our page Fee.

Common mistakes to avoid

• Marking only at the end of the caption or hidden between many hashtags.
• English abbreviations such as #ad or #spon instead of “advertising” or “advertisement”.
• In Stories only mark the first slide, but not the following slides.
• Assume that a PR package without payment is not a consideration.
• Sign a pre-formulated cease-and-desist undertaking from the cease-and-desist letter unaudited.
• Forgot old posts: Posts from years ago can still be warned.