Consumer ISG - Holiday Guide 2021 - Flipbook - Page 10
The Hogan Lovells Holiday Guide 2021
Focus on Germany:
Labelling requirements
for influencer marketing in
Germany this holiday season
Yvonne Draheim and Sabrina Mittelstaedt, Hamburg
'Tis the season for giving and receiving, so
now's the best time to engage an Influencer
to promote your products, or so the received wisdom
goes. But online where your English language
advertisements can be found by, and may even be
targeted at, non-English speakers, how can you best
comply with labelling requirements for influencer
marketing in countries outside your home market?
The need to take care has just been helpfully
illustrated by a UK case in which the Advertising
Standards Authority (ASA) held that the use of
"#iworkwith[company]" was insufficient to
label a post as advertising. The ASA found both the
company and the influencer jointly responsible for
ensuring that the posts on the influencer's account
complied with the rules.
Would the "#iworkwith[company]" label
be considered sufficient in Germany?
The leading case for adequate labelling in Germany
is a judgment by the Higher District Court of Celle
from June 2017. The influencer had used "#ad" in
a so-called "hashtag cloud" at the end of the post.
The Court found that that was insufficient labelling,
and held that both the influencer and the company
were liable. In Germany, the label must be clearly
visible and recognizable at first glance. This means
that the label should be used at the beginning of
the post. Use in a section that only becomes visible
after clicking on "read more" and/or as a hashtag in
a hashtag cloud – irrespective of the position – will
most likely be considered insufficient because the
assumption is that the public would not notice of the
labelling information if that is where it appears.
Hence, the use of "#iworkwith[company]" in
the #-section would not work in Germany either.
But what does adequate labelling look like in Germany?
There is no definitive answer to this question. From
the Higher District Court of Celle's judgment it follows
that at least "ad", even if it is used at the beginning of
a post, would not be considered sufficient labelling.
The Court was doubtful that the German public, having
a limited knowledge of the English language, would
understand "ad" is am abbreviation of "advertising".
It presumably follows that the German public would
not understand the English term "advertising" either.
There is German case law indicating that the label
"sponsored by" will not be considered as adequate
labelling either, as it is less clear than the German
words "Anzeige" or "Werbung" (both translating to
advertisement). With this label, the public could not
safely assume that a contribution qualifies as advertising.
Against this background, it seems unlikely that
"I work with [company]", even if used in German
at the beginning of the post, would be considered
sufficient labelling in Germany. For this reason, we
recommend that advertising posts aimed at German
consumers should also use the label "Anzeige" or
"Werbung" at the beginning of the post so that you do
not run into problems regarding insufficient labelling.
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