German Judges Allow Surreptitious Advertising on Instagram in Moderation

Influencers who refer to products or brands with photos on Instagram are not guilty of surreptitious advertising. According to the German Bundesgerichtshof, they do not violate the advertising rules, although the images must not be too promotional in nature.

 

The judges ruled, among other things, about so-called ‘tap tags’ in photos on Instagram. This redirects users to profiles of manufacturers or brands. According to the judges, the mere fact that photos depicting the product bearing these tags are not sufficient to presume that they are advertising. If a link is placed to the manufacturer’s website of the depicted product, this is the case. This also happens regularly.

The German organization Verband Sozialer Wettbewerb, which deals with, among other things, fair competition, had objected to what, in their view, was impermissible surreptitious advertising. The complaints were directed against influencer Cathy Hummels, the wife of football player Mats Hummels, fashion influencer Leonie Hanne and fitness influencer Luisa-Maxime Huss. The women have now largely been proved right.

In one case, the German judges took a different position. For a post about a raspberry jam, one of the influencers had received consideration from the company without labelling the post as advertising. The judges considered this a violation of the unfair competition law.

If a post contains advertising that is not clearly stated, a complaint can be submitted, and the foundation can issue a warning. If this is ignored, regulators will be informed, such as the Netherlands Authority for Consumers and Markets (ACM), which deals with consumer legislation. It is possible that after investigation, even a fine will follow.