Companies have an interest in effective advertising that leads the consumer to perceive the company and its products in a positive (more) positive manner in a way to ultimately increase sales.
Advertising is particularly credible when it doesn’t look like advertising at all, but rather like the personal opinion of the person posting.
In Europe, however, the separation requirement applies, according to which editorial content must be strictly separated from social media advertising content.
The separation requirement can be found in various places in the law.
The term “decisive advertising” describes the violation of the separation requirement, in short, advertising that is not recognizable as such by the user.
An example of “classic decisive or surreptitious advertising” are advertorials in which an advertising text is disguised as an editorial contribution, ie the advertising character is not or not sufficiently clearly indicated.
Surreptitious advertising is transmitted on Twitter and Instagram
The ban on surreptitious advertising is becoming more and more practical in connection with so-called influencers, i.e. people with many followers in social networks such as Facebook, Twitter, Instagram & Co. and correspondingly high “power of opinion” (e.g. celebrities, athletes, musicians, Instagramers, YouTubers etc.)
Also with regard to Instagram, the Higher Regional Court of Celle decided that it is not enough to mark a sponsored post with the hashtag #ad if other hashtags are also used in a hashtag cloud.
Disclose sponsored social post
Personally, I am of the opinion that the hashtag #ad would not have been a permitted advertising label even on its own – just like #sponsored.
It is also important that the commercial purpose of the post is apparent at first glance.
In my opinion, the safest option is to insert the advertising notice at the beginning of the description and to dispense with further hashtags or at least to insert them under the main description.
Case study of Hidden advertisement
Another decision on surreptitious advertising on Instagram concerns a fitness model that had already issued a declaration of cease and desist with penalties.
From an objective point of view, the combination of linking the manufacturer’s profile and hashtags only allows the conclusion that the Instagrammer had directed visitors to her profile to the manufacturer and thus wanted to promote their sales.
A different subjective motivation of the Instagramer does not matter.
Companies that work with influencers should make sure that they conclude a suitable influencer contract.
Instagram denied the allegation. In each case, it was about pictures from her private life, such as trips or new clothes, for which she had received no remuneration or other benefits from the linked companies.
After the district court had initially issued an injunction against the Instagrammer, it overturned this upon objection, as it had not been made credible that the Instagrammer’s behaviour constituted a “business activity” within the meaning of the UWG.
In the opinion of the Hamburg Regional Court, the action is in principle necessary on the basis of a paid contract or at least in the expectation of payment or consideration.
The district court recognized the difficulty of proving a commercial activity, as the advertising character on Instagram would often be disguised in order to appear more credible through a private presentation of the postings and to arouse greater interest than through recognizable “real” advertising by the companies themselves.
To observe the principle of freedom of expression, which allows private individuals to express themselves on economic issues and also on companies and products and to make negative as well as positive recommendations in this context.
Therefore, what matters most is the accompanying circumstances, which can be indicative of the existence of commercial activity.
The decisive factor is whether either a fee has been paid (OLG Celle, see above) or other advantages such as discounts or bonuses have been granted or at least promised.
In addition, it must be taken into account that private posts with self-purchased products can also serve to generate attention from potential advertising customers and to increase the market value for future advertising campaigns.
Thus, at least well own commercial activities are promoted.
An indication can also be that the person concerned is an “influencer” with a high number of followers.
This can result in a fundamental endeavour to encourage other users to buy products and thus earn money or gain monetary advantages.
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