#unfaircompetition – limitations to influencer marketing under German law

by Hogan Lovells

Hogan Lovells

More and more companies advertise their products through so called influencer marketing, using the accounts of social media stars to reach their followers. The Higher Regional Court of Celle decided recently that a company using an influencer to post advertising on Instagram may be liable for failing to clearly indicate the underlying commercial purpose even though the post contained the hashtag “#ad” (Higher Regional Court of Celle, ref. no. 13 U 53/17).

The case

An association for consumer protection applied for a preliminary injunction against a consumer goods company that had paid an influencer to advertise its products on Instagram. The influencer had posted an image showing female arms holding different cosmetics and jewelry with a text saying that the company offers a 40% discount on eye make-up in all its stores the following day. The text itself also contained a link to the company’s Instagram account and was followed by six hashtags, again including the company name as well as “#ad #eyes #shopping #discount #40percent”. The District Court had refused to grant a preliminary injunction in the first instance.

Findings of the Court

The Higher Regional Court reversed the decision of the District Court and held that the Defendant is obliged to cease and desist from having third parties posting advertisements under the appearance of private posts as in the cosmetics advertising described above. It held that the Defendant itself is liable for having violated German unfair competition law, notwithstanding that the advertising appeared as a statement of an individual on Instagram. In reasoning so, the Court mainly relied on the fact that the influencer had obtained a remuneration for the post. The Court further came to the conclusion that the hashtag “#ad” used by the influencer as one of six hashtags at the end of the post does not suffice to clearly mark the underlying commercial intent of the post, particularly underlining that such commercial intent needs to be identifiable at first sight. While the Court did not decide expressly whether the hashtag “#ad” is suited to identify advertising, it pointed out that consumers tend to not read the hashtags and will therefore in any event not take notice of the “#ad” hashtag. The Court further pointed out that average consumers will not infer the commercial intent of the post from the other elements of the advertisement, such as the company name being mentioned. Moreover, the Court held that the professional quality of the photo is not an indicator for the commercial intent either, as many influencers would also post professional quality photos illustrating their private life.


The decision significantly raises the bar for influencer marketing posts to not violate unfair competition law, while regrettably not clarifying the criteria to be met. With the question of whether the hashtag “#ad” itself satisfactorily identifies advertising remaining unresolved, it is still unclear what companies can do to avoid falling foul of German unfair competition law. Until the issue is finally decided by the Federal Court of Justice, it is advisable for companies to have their influencers contractually obligated to indicate the commercial intent as clearly as possible, e.g. by naming the advertising purpose at the beginning of the comment text itself and by including identifiers such as “#ad” and “#sponsored” as the first hashtags within a group of hashtags.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Hogan Lovells | Attorney Advertising

Written by:

Hogan Lovells

Hogan Lovells on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.