Facts

The plaintiff is a publisher of print and online magazines, offering advertising against payment. The plaintiff also operates a user profile on the social media platform Instagram. The defendant is an influencer with a user profile on Instagram reaching approximately half a million followers. The grounds for the dispute were posts by the defendant on Instagram in which she presented a bundle of e-books worth € 1,300 dealing with vegan nutrition and having been made available to her free of charge by the provider of the e-books. The defendant did not receive any direct financial remuneration. She linked the accounts of the providing company with so-called "tap tags" without making this recognizable as advertising. The District Court of Frankfurt a. M. (LG Frankfurt a. M.) ordered the defendant to cease and desist from posting the contents in question. The appeal of the defendant was rejected by the Higher District Court of Frankfurt a. M. (OLG Frankfurt a. M.).

Decision

The OLG Frankfurt a. M. upheld the judgment of the LG Frankfurt a. M.

First, it rejected the defendant's objection that the plaintiff's cease-and-desist claims were abusive under Section 8c (2) of the German Unfair Competition Act (UWG). Regarding the amount of the value in dispute claimed in the plaintiff's warning letters (€ 100,000), the court particularly emphasized that this amount was not disproportionate due to the economic importance of the activity of influencers with a wide reach.

In addition, the court assumed a commercial act in favor of the defendant and the third-party company which had provided the e-books to the defendant. The OLG justified its assumption that there was a commercial act in favor of the third-party company by stating that the post had to be classified as a "prototypical case of advertising excess", as it did not contain any content-related discussion of the products. The reference to the original price of the products and to a discount also indicated "classic product advertising".

The court considered the promotion of the third-party company by the post to be an unfair commercial act pursuant to Section 5a (6) UWG (which is now since May 2022 regulated in the new version of Section 5a (4) sentence 1 UWG). The court ruled that the average consumer was not able to recognize the commercial connection between the defendant and the third-party company, as the defendant did not sufficiently clarify such a connection in its post and therefore violated section 6 (1) no. 1 TMG of the German Telemedia Act (TMG) as well as section 22 (1) sentence 1 of the German State Media Treaty (MStV). However, the court ruled that there was no unfair competition in the defendant's post insofar as she promoted her own company, since the visitor of the account would be able to recognize that the defendant posted the products to increase the value of her own image in her work as an influencer and thus for commercial purposes.

Conclusion

The OLG based its assessment regarding the commercial act as well as the question of unfair competition on the recent case law of the BGH on influencer marketing (see our article on the Influencer case law of the BGH). After a long period of legal uncertainty, a uniform case law appears to have evolved in the field of influencer and social media marketing, which should provide more certainty for all parties involved.

At the same time we will be monitoring developments closely as it remains to be seen whether and to what extent the new version of Section 5a (4) UWG, which recently came into force, will have an impact on this business field. This regulation now contains a provision on commercial communication as well as a rebuttable presumption to the detriment of the person acting in the course of its business.