In this publication, first issued as a LexisNexis Practice Note in February 2021, Yvonne Draheim and Sabrina Mittelstaedt deal with influencer marketing in Germany. It is aimed at influencers as well as at brand owners engaging in advertising, and focuses on influencer disclosure requirements, sanctions, and oversight for insufficient disclosure. Copyright in the (sponsored) content and key provisions in influencer agreements are also covered.
The nature of social media influencers
Influencer marketing is a common form of advertising in which companies hire a person, the influencer, to promote their products (Higher District Court of Hamburg GRUR-RS 2020, 18139, para. 55; Zurth/Pless, ZUM 2019, 414 (414 et seq.)). The influencer is an interesting contract and advertising partner for the company as they have built either a large following guaranteeing a broad reach for their posts (so-called celebrity influencer) or a following of a (small) homogeneous group of followers interested in the same topic (so-called micro-influencer) (cf. Draheim/Mittelstaedt—HL Engage Influencer Snapshot, see Ins and outs of celebrity influencers). In the latter case, the influencer often serves as authority on the topic (see also Lettmann, GRUR 2018, 1206 (1211)).
The appeal of influencer marketing is obvious. Many of the influencers use their social media profiles also for private postings, establishing a relationship with their followers and also actively interacting with them. If they present or recommend a product, their followers trust this recommendation and are more likely to buy such products than in cases in which the product is presented to them in ‘normal’ advertisement. The apparent private opinion of the influencer in relation to a specific product is the reason why the posts are viewed, and the products purchased (Zurth/Pless, ZUM 2019, 414 (415, 419 f.); see, in a more general way, also Higher District Court of Berlin GRUR 2019, 543 (545) – Produkt-Tagging, para. 36; see also District Court of Karlsruhe GRUR-RR 2019, 328 (330) – Foto-Tagging, para. 30).
However, the apparent private nature of such influencer posts can be problematic. One of the main principles in German law is the separation of editorial and advertising content, as well as the labelling of the latter. These separation and labelling requirements are regulated in several laws in Germany and are based on the constitutionally protected right of freedom of information (Gräfe, RDV 2018, 185 (186); cf. Laoutoumai/Heins, MMR 2018, 108; Zurth/Pless, ZUM 2019, 414 (420)). These regulations also apply to influencer promotions (see only Gräfe, RDV 2018, 185 (186); Laoutoumai/ Heins, MMR 2018, 108 and see below the numerous cases cited).
The application of these established rules to influencer posts has been the focus of German case law on influencer marketing. Courts have dealt with cases brought against influencers for inadequate labelling. However, there has also been a case brought against a company where the engagement of an influencer had not been disclosed in her posts (Higher District Court of Celle GRUR 2017, 1158 – Hashtag #ad). This shows that the regulations on influencer marketing are relevant for companies and influencers alike.
Another aspect of influencer marketing, which so far has received less attention is the question of ownership and rights of use of the content created by the influencer when it is created in co-operation with a brand. This reinforces the importance of coverage of this in contracts between brand owners and influencers.
The full PDF publication, accessible here focusses on the following related aspects of influencer marketing in Germany:
- Influencer labelling obligations—key regulations
- Manner of labelling
- Sanctions and oversights
- Requirements of other regulations
- Copyright protection for influencer content
- Key provisions in influencer contracts