At a glance
- Consideration = duty to label
- “Werbung” or “Anzeige” at first glance
- Brands are liable for their influencers
Influencer marketing is advertising, with all the duties that follow. Since the Federal Court of Justice’s landmark rulings of September 2021 and the reform of Section 5a(4) UWG in May 2022, the standards are clearer.
When labelling is required
A post must be labelled as advertising if the influencer receives payment or similar consideration – money, affiliate commission, free products, trips, discounts, prospects of future cooperation (BGH, 13 January 2022, I ZR 35/21). Without consideration, there is a rebuttable presumption that there is no commercial intent (Section 5a(4) UWG). Posts promoting the influencer’s own business are commercial anyway.
How to label
Clearly and at first glance, at the start of the post or in the image/video; in Germany “Werbung” or “Anzeige”. “#ad”, “sponsored by” or “#collab” are risky. Platform tools (“Paid partnership”) may suffice if clearly visible. The German media authorities’ guidance is widely followed by courts.
Liability of brands
Brands are liable for their influencers’ infringements as agents under Section 8(2) UWG, without exculpation; agencies too. Contracts should set clear rules, approval processes and penalties.
Special cases
Affiliate links and discount codes, tap tags, health, finance and gambling topics, AI influencers (additional disclosure under Art. 50 AI Act), child influencers, corporate influencers.
