Germany - The use of influencers in social media – The latest “hat trick” of the BGH

The traditional advertising industry is changing. For quite some time now, companies have increasingly been using so-called influencers to promote their products instead of the traditional media. On their wide-ranging social media channels, influencers rate, test, present or mention brands, products, and services of various companies by means of tagging or links in social media posts. Many of such posts do not immediately "out" themselves as classic advertising and for consumers, it is not always clear if a post is an influencer's personal and independent opinion or if the post is sponsored by the company, who’s product is mentioned in the post. Therefore, consumers are not able to tell whether such a post constitutes an objective statement by an independent third party, which consumers are regularly more likely to consider in their decision-making process, or if it is a sponsored marketing activity, which is regularly less reliable. For a long time there was considerable legal uncertainty whether such posts by influencers must be clearly labelled as advertisements under German unfair competition law. Now, for the first time, the German Federal Court of Justice (Bundesgerichtshof, BGH) has issued a "decision hat trick" (case I ZR 90/20; case I ZR 125/20; case I/ZR 126/20) regarding influencer marketing - especially in connection with the use of so-called tap tags. In particular, the decisions dealt with the question of whether influencers had violated the requirement to label their social media posts as advertisements.