What is your suggestion about network marketing

Draft law: when do influencers have to mark their posts as advertising?

“Unpaid advertising”, “advertising because of branding” or “ad”. It is not easy for influencers on Instagram if they want to mark their posts in a legally compliant manner. While there used to be no transparency as to what one's own recommendation and what paid content was, in 2019 several German courts decided whether every post with product recommendations - whether paid or unpaid - must be marked as advertising. Since the judgments were very different, there is still great uncertainty today. To be on the safe side, everything that contains any products is now usually marked according to the motto: Better safe than sorry. After all, unlabeled posts can quickly and costly be warned by the competitive associations.

Mark influencer posts as advertising: does a new law finally provide clear guidelines?

This is annoying for users who no longer recognize what is advertising and what is not because of the number of labels. For the influencers as well, as they move without a secure legal framework. To change that, the Federal Ministry of Justice met with industry representatives and competition associations and worked on a change to competition law. After a first draft in February, the final version of the draft has been online since last week. Specifically, this involves a change: In the law against unfair competition, a paragraph is to be inserted, according to which only actions in favor of other companies for which “remuneration or a similar consideration” is rendered are considered commercial. Only these would have to be marked. If no money has flowed and no gifts have been sent, no labeling would be necessary. So far this has also been the case, but the uncertainty of many led them to mark every post one way or another.

The decision should be made in the coming year

This suggestion is welcomed on the influencer side, but not everyone is so positive about the draft. The managing director of the competition association said, Ferdinand Selonke, Heise opposite:

Instead of changing the law, it would be better to wait for the decisions of the Federal Supreme Court to see how the highest courts decide.

Several cases against influencers are currently on their way to the BGH. However, a decision can be expected in the course of the coming year at the earliest. Comments on the draft of the Ministry of Justice can still be submitted until the beginning of December. Here, too, it will probably take a while to reach a decision.