The need to take care has just been helpfully illustrated by a UK case in which the Advertising Standards Authority (ASA) held that the use of "#iworkwith[company]" was insufficient to label a post as advertising. The ASA found both the company and the influencer jointly responsible for ensuring that the posts on the influencer's account complied with the rules.
Would the "#iworkwith[company]" label be considered sufficient in Germany?
The leading case for adequate labelling in Germany is a judgment by the Higher District Court of Celle from June 2017. The influencer had used "#ad" in a so-called "hashtag cloud" at the end of the post.
The Court found that that was insufficient labelling, and held that both the influencer and the company were liable. In Germany, the label must be clearly visible and recognizable at first glance. This means that the label should be used at the beginning of the post. Use in a section that only becomes visible after clicking on "read more" and/or as a hashtag in a hashtag cloud – irrespective of the position – will most likely be considered insufficient because the assumption is that the public would not notice of the labelling information if that is where it appears.
Hence, the use of "#iworkwith[company]" in the #-section would not work in Germany either.
But what does adequate labelling look like in Germany?
There is no definitive answer to this question. From the Higher District Court of Celle's judgment it follows that at least "ad", even if it is used at the beginning of a post, would not be considered sufficient labelling. The Court was doubtful that the German public, having a limited knowledge of the English language, would understand "ad" is am abbreviation of "advertising". It presumably follows that the German public would not understand the English term "advertising" either.
There is German case law indicating that the label "sponsored by" will not be considered as adequate labelling either, as it is less clear than the German words "Anzeige" or "Werbung" (both translating to advertisement). With this label, the public could not safely assume that a contribution qualifies as advertising. Against this background, it seems unlikely that "I work with [company]", even if used in German at the beginning of the post, would be considered sufficient labelling in Germany. For this reason, we recommend that advertising posts aimed at German consumers should also use the label "Anzeige" or "Werbung" at the beginning of the post so that you do not run into problems regarding insufficient labelling.
Authored by: Yvonne Draheim and Sabrina Mittelstaedt.