Case Law of the Higher Regional Court (OLG) Frankfurt am Main on Competition Law among Influencers
By order dated June 28, 2024 (Case No. 16 U 80/24), the Higher Regional Court of Frankfurt am Main issued a decision with far-reaching significance for the social media industry and competition law. The central question was whether two influencers could assert competition law claims for injunctive relief against each other in relation to covert advertising and misleading commercial communication.
Initial Situation and Presentation of the Facts
The background of the proceedings was a dispute between two influencers active on a large social media platform, both promoting lifestyle products. The plaintiff criticized the defendant for allegedly inadequate labeling of her commercial interests in connection with postings. She viewed this as a violation of the rules separating advertising from journalistic content under Section 5a of the German Act Against Unfair Competition (UWG) and demanded injunctive relief. The core issue was whether competition exists within the meaning of the UWG and whether corresponding claims for injunctive relief could be asserted.
Key Considerations of the Court
Demarcation of Commercial Activity
The OLG Frankfurt analyzed whether the parties are actually regarded as competitors within the meaning of competition law. The decisive factor is whether both parties offer “similar goods or services” on the market and are in a specific competitive relationship. This requirement is met when promotion of their own or another’s sales is in direct competition with each other.
Absence of a Concrete Competitive Relationship
The court denied—as referenced by existing supreme court case law—the existence of a competitive relationship between influencers who act on social media platforms solely as “opinion intermediaries” or “communicators,” as long as they do not sell their own products or directly act on behalf of companies. From the panel’s perspective, it was decisive that there was no performance-based economic relationship between the parties and that the influencers’ content was primarily aimed at building their own reach. If only lifestyle, experiences, or opinions are shared, the actual competition for customers recedes into the background.
No Legal Basis for Injunction Claims
In the absence of a direct competitive relationship, competition law-based claims for injunctive relief under Section 8 UWG against the defendant are excluded. According to the OLG Frankfurt, these are not “actions for the purposes of competition,” as the defendant does not independently market a comparable product or service as a competitor. The fact that both influencers are present on the same platform and address similar target groups does not itself establish a specific competitive relationship.
Implications for Influencer Marketing and the Legal Framework
Protection of Plurality of Opinion versus Unfair Competition Law
The decision clarifies the boundaries of competition law in the influencer sector and affirms that the protection of diversity of opinion and freedom of communication is of great importance. Social media actors can often invoke freedom of communication as long as they do not maintain classic competitor relationships with third parties. Only in cases where economic promotion of third-party or own products is the primary focus can competition law claims be considered.
Practical Implications for Affected Parties
Social media actors should be aware that claims for injunctive relief based on competition law are subject to limitations if there is no direct promotion of specific goods or services and no related competitive relationship. While transparent and correct labeling of advertising content remains essential, asserting competition law claims among influencers is not unrestrictedly possible.
Context of the Decision and Ongoing Developments
It should be noted at this point that the decision of the OLG Frankfurt am Main described here is limited to the specific circumstances of the individual case on which it is based. The development of case law in the area of digital communication and social media will continue to be followed with great interest, as regulatory requirements and corporate culture on these platforms are constantly evolving.
Concluding Remarks
The judgment underscores the exceptional nature of competition law claims among social media actors and at the same time provides important guidance for differentiating between entrepreneurial and non-entrepreneurial actions in the digital space. The assessment always depends on the individual case and the specific nature of the promotional activity.
For companies, influencers, and other market participants who are unsure or identify a need for advice in connection with issues of competition law, advertising labeling, or related topics, the lawyers at MTR Legal offer the opportunity to create clarity and develop legally secure structures.
