Advertising on social media In Germany must comply with the German Unfair Competition law. The main obligations imposed upon advertisers are that they are prohibited from advertising in a way that is unfair or misleading.
In November 2018, the German media authorities published a joint Guidance Paper to assist brands and influencers in ensuring their posts are compliant.
According to the Guidance Paper, where there is a co-operation between an influencer and a brand, any posts made by the influencer must be clearly labelled as advertising. Co-operation exists between an influencer and a brand regardless of whether the influencer receives consideration (such as money or a gift) of any kind.
Usually it will be the case that, as long as there is no co-operation with a brand in respect of an influencer’s post (that is, the influencer makes the post on his or her own decisions and free from any commercial incentive or agreement), no specific labelling will be required. However, there are certain scenarios where a post may nonetheless be deemed an advertisement even if no co-operation exists.
For example, the Guidance Paper explicitly refers to a recent decision made by the District Court of Berlin which said that an Instagram post made by a consumer presenting a brand’s product, and which included a link to that brand’s commercial Instagram account, was deemed to be advertising. In addition, where, in the perception of other users, an influencer’s post is intended to increase a brand’s product sales, this may be deemed to be advertising even if there is no co-operation between the brand and the influencer.
The Guidance Paper also makes the following additional recommendations:
The Guidance Paper only sets out recommendations. It is not binding on the German courts. However, it is worth noting that the District Court of Berlin, in the case mentioned above, ordered the influencer to flag her social media posts as advertising. This shows that the court, in certain circumstances, will uphold claims made against a brand or influencer in breach of German advertising laws.
Guidance paper (in German):