The Federal Court of Justice has put an abrupt end to the overly careless handling of surreptitious advertising by influencers: They have to clearly mark on social media platforms such as Instagram when they praise products in exuberant words.

The well-known influencer Cathy Hummels can breathe a sigh of relief: In her case, the judges saw no problems in the fact that she once staged a blue plush elephant on her channel.

Corinna Budras

Business correspondent in Berlin.

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Specifically, the proceedings concerned three influencers who regularly publish pictures on Instagram.

Often it is about everyday things: fitness, vacation, raising children, raspberry jam.

Because of the high and precise range, women are also often used by the advertising industry to inform their followers about new shoes or make-up utensils.

Often they also run online shops.

For a long time, this was done with an astonishing lack of concern for the rules of free competition: advertising as such must be clearly marked for consumers.

The women accused, on the other hand, often cited freedom of expression.

Wave of warnings against numerous influencers

The Association of Social Competition therefore sensed “inadmissible surreptitious advertising” and set in motion a wave of warnings against numerous influencers.

Three of the cases now went up to the Federal Court of Justice, which took the opportunity to set limits in this area.

In two cases, the judges had no problems with the actions of influencers like Cathy Hummels: The fact that they are commercially active is clear from the circumstances.

Hummels marks Instagram posts about products from business partners with the note: "Paid partnership with ..." A ban to protect consumers is therefore not necessary.

Otherwise, it was important to the judges whether there was a business connection between the influencer and the manufacturer. If this does not exist, they are less strict. In this case, the contribution only needs to be marked as advertising if the overall impression is that it is “exaggeratedly promotional”, i.e. if it lacks any critical distance from the product. Then leave the presentation "the framework of factually prompted information."

The judges emphasized that this is not automatically the case with "tap tags". They work like this: If you click on the photo that has been posted on the web, information about the brands of the manufacturers that can be seen in the picture appears. That is still unproblematic. Only when another click leads the user directly to the page of the respective company does the post get tricky: Then the influencers have to mark the content as advertising - regardless of whether they get something in return or not.