An association for the prevention of unfair competition had warned the German influencer in several cases, as the latter published articles on her Instagram account using so-called "tap tags", which - in the opinion of the association - should have been labelled as advertising. "Tap tags" are markings within a post which, when clicked, reveal links to the suppliers or manufacturers of certain products that can be seen on the posted images (it is also possible to link to companies whose products are not presented in the post which was subject matter of other court decisions in the past). In the first instance last year before the District Court of Karlsruhe, the influencer had been held liable for the infringement of the German Act against Unfair Competition, as the Court had decided that influencers using "tap tags" would have to mark the post as advertisement.
Now the Higher District Court of Karlsruhe had to decide on the appeal of the influencer in the second instance.
The Higher District Court of Karlsruhe confirmed the first-instance decision, ruling that the use of "tap tags" constituted a commercial practice with a commercial intent, which the influencer had to label as advertisement. The court thus rejected the influencer's argument that the posts were merely private expressions of opinion and that the "tap tags" were only inserted in order to forestall requests from followers. The court stated that because of the overall commercial use of the influencer`s Instagram account, the insertion of the "tap tags" had to be considered a commercial practice (as incidentally also stated by the District Court of Koblenz in April of this year (case no. 1 HK O 45/17)). According to the Court, the commercial nature of the influencer`s posts was not only apparent from the links to other brands, but also with regard to her own business. The court found that with the posts the influencer not only promoted the sales of the "tagged" companies, but also increased her own value as an influencer.
As a result, the court held that the commercial intent had to be disclosed accordingly, which the influencer failed to do. The Higher District Court therefore affirmed the violation of Sec. 5a (6) of the German Act against Unfair Competition. The various commercial purposes of the posts were also not directly apparent to the consumer from the circumstances (a different opinion was recently issued by the Higher District Court of Hamburg in its judgement of July 2, 2020 – case no. 15 U 142/19).
The Higher District Court of Karlsruhe emphasized on the one hand that it had exclusively dealt with the question of the obligation to label "tap tags" as advertisement. On the other hand, it did not have to decide on the general question if and how posts had to be labelled as advertisement.
The judgment of the Higher District Court of Karlsruhe shows that in view of the divergent jurisprudence of the German courts, influencers might need to mark all contributions with "tap tags" as advertisement. Only once the Federal Court of Justice decides on the topic of "influencer marketing", will there be more legal certainty. In addition to the Higher District Court of Karlsruhe in the present case, also the Higher District Court of Hamburg and the Higher District Court of Munich admitted an appeal to the Federal Court of Justice in comparable cases.
Hopefully, the Federal Court of Justice will soon be given the opportunity to comment on the legal situation which obviously requires clarification.
Authored by Yvonne Draheim and Sabrina Mittelstaedt