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No labelling requirement for certain Instagram posts by influencers
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Monitoring advertising content on social networks and the regulatory classification of posts that display products or brands remain the subject of legal disputes. The Munich I Regional Court recently addressed the question under which conditions influencers on Instagram must label content as advertising.
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Background to the court decision
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At the centre of the proceedings was an influencer who published photos on her Instagram profile and tagged company profiles without receiving any consideration in return. A competition association considered this an unlawful commercial act because it was not labelled as advertising and initiated legal action.
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Judicial assessment of commercial communication
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In its decision, the Munich I Regional Court denied any labelling requirement for such posts. In the Chamber’s view, publishing posts with links to company pages alone did not yet constitute a commercial act within the meaning of competition law, provided that no advertising commission or other form of consideration is apparent. Linking profiles is not sufficient to assume advertising if the content is primarily privately motivated and the products were purchased independently.
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Distinction from paid content and sponsoring
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According to the judgment, decisive for the assessment is whether there is an actual relationship between the person publishing and the advertised company in the form of payment, sponsoring or other consideration. Only in these cases can the requirement to label as advertising apply. In the scenario at issue, however, it was undisputed that no such consideration was provided.
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Classification and outlook
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The judgment of the Munich I Regional Court fits into the current debate on transparency obligations in the digital sphere and contributes to further clarification of the decisive criteria for assuming commercial acts by influencers. The decision is not yet final; a conclusive assessment through the instances therefore remains reserved (source: Munich I Regional Court, judgment of 29 April 2019, case no. 4 HK O 14312/18).
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For companies, investors and high-net-worth private individuals who are active in the digital environment, the proceedings underscore the importance of clear rules in the context of advertising content on social platforms. If you have further questions, well-founded legal support is essential. Further information can be found on our page for Legal advice on commercial law.
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