After the Federal Court of Justice caused influencers and bloggers to breathe a sigh of relief, especially with the Influencer II and III decisions (I ZR 125/20, I ZR 126/20), it is sensitively backsliding back on its latest ruling on influencer marketing (BGH I ZR 35/21) with the reasons for the decision published on February 15, 2022.
It is true that the 1st Civil Senate remains true to its opinion that Instagram posts cannot necessarily be attributed a commercial purpose if no consideration was provided for setting tap tags (activelaw reported). However, the Federal Court of Justice finds that such consideration may also involve the (unsolicited) provision of goods. The question of whether the consideration is in a synallagma (i.e. a reciprocal relationship) is irrelevant. The expectations that companies have are decisive. This is based on the assumption that products made available will also be reported. If a report mentions the provided product, it was ultimately initiated and therefore no longer independent. This applies regardless of what value was attributed to the provided product. The minor threshold known from broadcasting law does not apply to telemedia. Low-value goods and services are therefore also relevant.
Attorney Dr. Sven Dierkes explains
With its new decision, the Federal Court of Justice is discriminating against influencers compared to broadcasting. Because in broadcasting, there is a minor limit with regard to the provision of products. The Federal Court of Justice disclaims this for influencers. The reason for this is doubtful.
It is true that broadcasting and telemedia open up different channels of communication and therefore cannot be treated equally in all matters. However, the assumption that a (even unsolicited) provision of products due to the provider's expectations means that a report mentioning the product per se is no longer independent is not only incriminating. It should apply in the same way to broadcasting. With the Federal Court of Justice, it is therefore more than annoying to reject an analogous application of the small claims limit due to the lack of planned regulatory loopholes in the area of telemedia.
However, the decision of the Federal Court of Justice is also irritating for another reason: because the court is of the opinion that relevant consideration is not important that it — contrary to its meaning of the word — is in a synallagma. This is leading to a renewed resurgence of legal uncertainty, which the Federal Court of Justice had just eliminated through its predecessor decisions. Because it is difficult for influencers to determine what degree of directness should be sufficient to actually accept something in return. Influencers could therefore be well advised in the future to label, for example, red carpet postings, etc., in line with the motto “better safe than sorry.” For example, if they tap the event but haven't paid for the invitation or post a photo from the Getty stock without having previously licensed it. The purpose of the labeling requirement, to create as much transparency as possible with regard to the influence of content, will certainly not be fulfilled in this way. ”
