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Cathy Hummels and the consequences – court decisions regarding influencer posts remain inconsistent
"Business action" as an essential criterion
The question of whether an influencer post contains surreptitious advertising or not is judged by the courts according to the Law against Unfair Competition (UWG). The UWG stipulates that the commercial purpose of a business act must be made clear if it is not directly apparent from the circumstances - and the consumer is thus induced to make a business decision which he would not have made otherwise. An act is deemed to be commercial if, upon objective consideration, the act is aimed at promoting the sale or purchase of goods or services.
The decisions on the influencers Pamela Reif (Az. 13 O 38/18), Cathy Hummels (Az. 4 HK O 14312/18) and Vreni Frost (Az. 5 U 83/18) have indeed concretized the competition law requirements for posts in social networks. However, the courts still lack a consistent approach.
No labelling obligation if the commercial purpose is recognizable
In the proceedings against Cathy Hummels, the Munich Regional Court held that: The posting of products by an influencer is a business act if the products are tagged and the tags lead to the websites of the respective manufacturers.
The Higher Regiona Court Munich sees this differently, as far as the press coverage shows, and already denies a business act. The reasons for the judgement are not yet available.
The Regional Court had argued that the posts promoted the sales of the linked companies. At the same time, Cathy Hummels was also promoting her own company. For as an influencer, she made her living from generating income by marketing the products of others.
However, the Regional Court also took the view that the commercial purpose of the posts was already apparent from the circumstances. The account of Cathy Hummels was a public and verified account (blue check mark) and had a high number of followers (485,000 at that time). Since the commercial purpose was obvious, the posts did not have to be marked as advertising. As a result, the Regional Court denied surreptitious advertising, and the Higher Regional Court accepted this finding.
In addition the Regional Court Munich still pointed out that especially children and young people are able to recognize the commercial purpose of influencer posts.
Higher Regional Court Frankfurt requires marking
On this point, the Higher Regional Court Frankfurt comes to a different conclusion: The subject of the proceedings before the Higher Regional Court Frankfurt were posts in which an influencer (582,000 followers) thanked two companies for trips and linked them.
The Higher Regional Court Frankfurt assumed here (as the Regional Court Munich has in the Cathy Hummels case, but differently than the Higher Regional Court Munich) a business act. However, it did not follow from the circumstances that the influencer was pursuing a commercial purpose with her posts. She addresses predominantly young consumers and presents herself thereby primarily as private person and not as an advertising medium. Accordingly, she should have labelled the contributions in question as advertising.
It remains to be seen whether a uniform jurisdiction will emerge in the near future. This would be desirable in order to provide legal certainty for influencers and companies alike. The fact that the Higher Regional Court Munich has opened the way for an appeal to the Federal Supreme Court in the matter of Cathy Hummels is therefore to be welcomed.