Free of charge
Test drive
in return.
Free of charge
Test drive
in return.
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Does an influencer have to label her Instagram reels about Audi, BMW and Volvo as advertising if the car manufacturers have only covered the travel costs for press appointments?
Is it enough for experienced Instagram users to recognize the commercial nature of such posts on their own?
What is it about?
An automotive influencer runs a public profile on Instagram with around one million followers and a blue verification checkmark. She publishes professional-looking short videos every day, known as reels, in which she presents vehicles from various manufacturers. By her own admission, she does not share any private content. The influencer was invited to press events by car manufacturers such as Audi, BMW and Volvo, where the vehicles were made available to her free of charge and her travel, accommodation and food costs were reimbursed. It then published corresponding articles. There was no contractual obligation to report on the vehicles. Nevertheless, an association sued for injunctive relief because the articles were not labeled as advertising .
Legal background
The Digital Services Act (DDG), which has replaced the previous regulation in the Telemedia Act, obliges providers of digital services to make commercial communication clearly recognizable as such. Any form of communication that serves to directly or indirectly promote the sale of goods and services or the image of a company is considered commercial communication – provided that it is not carried out independently and, in particular, not without financial consideration. The key question was whether the reimbursement of travel and accommodation costs constitutes such consideration – and whether the lack of labeling is legally relevant.
The decision of the OLG Karlsruhe
The Karlsruhe Higher Regional Court ordered the influencer to cease and desist in its judgment of 03.03.2026 – Ref. 14 UKl 2/24. The court initially affirmed the existence of commercial communication for the benefit of third parties. The fact that the posts did not make a specific purchase recommendation and that the influencer was formally free to decide whether and what she published about the vehicles did not change this. The decisive factor was that the car manufacturers provided the vehicles and reimbursed travel expenses because they clearly expected that the vehicles would be reported on. A mutually binding agreement is not required.
Commercial communication also exists […] if the entrepreneur benefiting from this has not made a monetary payment, but has made the product presented available to the influencer.
The court also rejected the argument that the advertising character was recognizable to the audience without labeling. It clarified that not only the influencer’s followers should be considered as a relevant audience, but also all Instagram users to whom the reels are recommended via the algorithm in their feeds. For these users, who do not follow the influencer and do not know her channel, the commercial character is not immediately recognizable.
What does this mean for companies and influencers?
The ruling shows the back of influencer advertising. Influencers who receive reimbursement of travel expenses for press events and subsequently report on the products presented there are obliged to label their advertising. This applies regardless of whether they were contractually obliged to report. The free test drive thus becomes paid advertising.
If companies invite influencers to press events and reimburse costs, they should expressly point out their labeling obligation and include corresponding provisions in any contracts for cooperation. Otherwise, not only the influencers, but also the beneficiary companies indirectly risk legal consequences.
Conclusion
In an age in which content reaches millions of users via algorithms who are unaware of the channel and its commercial nature, the argument that no labeling is necessary because the advertising character is recognizable anyway simply no longer holds water. Critically, it should be noted that the line between private expression of opinion and advertising requiring labeling is not always easy to draw in individual cases, even after this ruling, especially if an influencer reports on a product free of charge and voluntarily. Anyone who receives monetary benefits should label such posts as advertising in order to avoid cease and desist letters.
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