Anyone who presents products on Instagram or other social media platforms must make the influencer advertising clearly recognizable.
Direct payment is not mandatory for this.
The Karlsruhe Higher Regional Court made it clear in its judgment of March 3, 2026.
Products made available free of charge as well as travel and food costs are also free of labeling.
The case: vehicle presentations without advertising labeling
The Higher Regional Court (OLG) Karlsruhe dealt with a high-reach automotive influencer who regularly published short videos on Instagram on Instagram, including influencer advertising labeling.
In the articles she presented, among other things, vehicle functions, interior fittings and design elements.
The manufacturers provided her vehicles free of charge for press events. In addition, they covered travel and food costs. There was no immediate payment for the individual Instagram posts. According to the court’s findings, the influencer was also not contractually obliged to publish articles after the press appointments.
The videos were not marked as advertisements. A business association with the right to sue objected to these publications and demanded that the influencer be obliged to omit the insufficiently labeled contributions.
With a judgment of March 3, 2026 (Az. 14 Ukl 2/24), the Karlsruhe Higher Regional Court approved the lawsuit. https://www.landesrecht-bw.de/bsbw/?query=doknr%3anjre001635443&source=permalink
Why benefits in kind can also count as consideration
According to the court, it is not decisive for the classification as commercial communication whether a company pays money for a contribution. Money-value benefits can also establish a commercial connection.
In the decided case, this included in particular:
- the free provision of vehicles,
- reimbursement of travel expenses,
- the assumption of the food costs.
According to the assessment of the court, the contributions were at least used to maintain the image of the respective automobile manufacturers. Commercial communication was thus in favor of the companies.
It was also crucial that there was no express contractual obligation to publish. Such an agreement is not mandatory after the judgment. The benefits granted can also represent consideration if the influencer was free to decide whether she would publish a contribution at all.
The court focused on the expectations of the companies that the vehicles presented would be reported. Direct payment for each individual post is therefore not a prerequisite for a possible labeling obligation. https://www.vzbv.de/judgment/zur-werbekennmarkt-fuer-influencerinnen
Advertising must be recognizable at first glance
In addition to the commercial character of the contributions, their concrete design was decisive. According to § 6 Para.. 1 No.. 1 Digital Services Act (DDG), commercial communications that are digital services or components of digital services must be clearly recognizable as such.
According to case law, labeling can be dispensable if the commercial purpose is already clear from the external appearance and at first glance. On the other hand, it is not sufficient if users only recognize the advertising character after a closer look.
In the present case, the videos sometimes worked as factual presentations or operating instructions for certain vehicle functions. Their commercial background was therefore not readily recognizable.
Even a verified account or a large number of followers does not automatically mean that all posts have to be understood as advertising. Especially when editorial content and advertising articles alternate on a profile, a clear labeling of individual publications may be required.
This applies in particular if platform algorithms also display the contributions to users who do not follow the profile and do not know their background.
What influencers and companies should consider
The decision makes it clear that the legal assessment of social media contributions must not be based solely on cash payments or express advertising contracts.
Influencers should therefore check before publication whether a contribution is related to the advantages of a company. In addition to fees, this can also include free products, invitations, trips or the assumption of expenses.
In practice, in particular, it is recommended:
- Complete services: In addition to cash payments, benefits in kind and costs assumed should also be taken into account.
- Check the commercial background: The decisive factor is not only your own editorial assessment, but also whether the contribution objectively serves to promote a company or its products.
- Clearly mark posts: If the commercial purpose is not clearly recognizable at first glance, a suitable and clearly visible advertising label should be used.
- Document contracts and agreements: Agreements on products, press dates, travel expenses and publications should be recorded in a comprehensible manner.
- Corporate communications: When planning influencer campaigns, companies and agencies should take the labeling obligations into account from the start.
However, labeling alone does not automatically eliminate any legal risk. The specific circumstances of the respective contribution and the relevant legal requirements remain decisive.
What legal consequences are threatened?
Those who do not sufficiently characterize commercial communication can be confronted with claims for injunctive relief. Depending on the facts, cease-and-desist letters and associated costs are also considered.
The judgment shows that such risks are not limited to classic, expressly paid advertising cooperations. Even supposedly independent product presentations can be legally classified as commercial communication if they are associated with monetary benefits.
For influencers, companies and agencies, it therefore makes sense not to check the labeling requirement only when publishing, but already when planning and implementing a cooperation.
The Karlsruhe Higher Regional Court strengthens the importance of a transparent separation between editorial content and commercial communication. Free products, vehicles provided or travel expenses may require advertising labeling. The fact that no express obligation to publish has been agreed and no money has flowed for the individual contribution does not automatically exclude such an obligation.
Influencers and companies should therefore also include indirect advantages and the concrete design of their contributions in the legal review. A clear labeling helps to inform consumers transparently and reduce the risk of legal disputes.
This post was created using artificial intelligence. The content is for general information and does not replace individual legal advice.