3 times FSC = Golden Rules for Influencer Marketing

Instagram & Co are their stage: Influencers orchestrate themselves and products that they mark via “tap tags”. By this, their followers can see which products they use and are directly directly to the manufacturer’s social media platform or website via the tag.

In three decisions published today, the German Federal Supreme Court (FSC) has answered important questions that have been burning under the nails of influencers for quite some time: We all know the references to “paid ad” in social media posts, just as we know them from print media. In contrast, the increasingly frequent references to “unpaid ad” in posts seem exaggerated. They are not really necessary either – somehow common sense already suggested before and now the BGH also states so!

The Golden Rules for the use of tap tags are now the following:

  • Basic rule: Tap tagging in social media posts alone is no commercial advertising. So, if an influencer does not receive anything in return from the manufacturer, you do not need to label the post as advertising. The “unpaid ad” notices are thus a thing of the past. Fans who are not paid for their posts can therefore blithely tag the products they buy.
  • Exception 1: This does not apply if you are an influencer and are paid for the tag/post or receive a product for free or at a discount: Then the post must be tagged as “paid ad”.
  • Exception 2: This also does not apply if the product is “excessively advertised” in the post, i.e. only the benefits are praised or – according to the BGH – a link to the manufacturer’s website is included in the post.

Incidentally, the influencers from the BGH decisions were Cathy Hummels @cathyhummels (I ZR 126/20), Leonie Hanne @leoniehanne (I ZR 125/20) and Luisa-Maxime Huss @luisa.maxime (I ZR 90/20).

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