Surreptitious advertising
through
influencers.
Surreptitious advertising
through
influencers.
from
More and more companies are using influencers to advertise on social media platforms such as Instagram. However, labeling obligations must be observed. This is because it is not uncommon for legal violations to result in cease and desist letters and claims for damages. This is confirmed by a judgment of the Hagen Regional Court.
Surreptitious advertising by fashion blogger on Instagram?
A fashion blogger published photos of herself with fashion items, such as a watch or a handbag, on Instagram. The brand products were linked to the homepage of the respective company. There was no indication in the blog entry with the word “advertisement”, “advertising” or similar to indicate that it was advertising .
A competition association saw this as surreptitious advertising and therefore a breach of competition law, issued a cease and desist letter to the fashion blogger and then applied for a temporary injunction. Such an injunction was also issued by Hagen District Court. The fashion blogger’s appeal was unsuccessful.
The court’s decision
The Hagen Regional Court confirmed with Judgment of 13.09.2017 – Ref. 23 O 30/17 the preliminary injunction. The court ruled that the images posted online and their links to the respective companies without indicating that they were advertising constituted an infringement of competition law.
The commercial purpose is not recognizable if the external appearance of the commercial activity is designed in such a way that the consumer cannot clearly and unambiguously recognize its commercial purpose. This was the case because, on the face of it, it was merely a fashion blog where the fashion blogger talked to her followers about her outfits. At first glance, it is not apparent that the main aim of these images is to advertise the products shown in the image.
Conclusion
If advertising by fashion bloggers on social media platforms is not sufficiently labeled as advertising, this constitutes anti-competitive surreptitious advertising. The commercial purpose of a post on Instagram and the like must be clearly recognizable.
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