The judgment of the Regional Court of Karlsruhe (Ref. 13 O 38/18 KfH)

In its ruling of March 21, 2019, the Regional Court of Karlsruhe (Ref. 13 O 38/18 KfH) decided (see Karlsruhe Regional Court press release) that influencers – here: Pamela Reif – must also label unpaid posts as advertising if these posts are also intended to promote their own business activities as an influencer.

The press release states:

“The court considers the defendant’s actions to be an infringement of competition law. The defendant’s posts arouse interest in the items of clothing worn etc.. By enabling users to access the manufacturer’s website with just two clicks, the image and sales of the respective manufacturer are promoted. The fact that the defendant primarily wants to avoid questions from followers (“Where did you get your dress?”) by tagging does not contradict the business purpose pursued at the same time.
(…)
It is the nature of influencer advertising that the influencer always simultaneously works on his image and authenticity, for which he promotes the appropriate brands and articles, and “cultivates” the circle of his followers, who value his credibility and want to be part of “their” influencer’s community. In this respect, the defendant always promotes its own business activities through its posts. This is because companies are interested in the most credible advertising media possible for their advertising.

Labeling as advertising is also not dispensable. Under no circumstances do all followers know how to assess the advertising character of influencers’ appearances; this applies in particular to the defendant’s subscribers, some of whom are very young.”

Contradiction to the appeal judgment of the KG Berlin (“Vreni Frost”, Ref. 5 U 83/18)

The Regional Court of Karlsruhe is thus clearly contradicting the ruling of the Berlin Court of Appeal of 9 January 2019 (Vreni Frost ruling), which fortunately set the record straight in favor of influencers:

In the point of interest here, the Court of Appeal overturned the first-instance judgment against Vreni Frost and – in my opinion correctly – found that posts showing items of clothing, shoes and accessories etc. do not generally have to be labeled as advertising. The KG Berlin stated (judgment of January 8, 2019, Ref. 5 U 83/18; emphasis added by the author):

“It can be assumed that websites such as the account operated by the defendant under “…” are visited because users are also interested in the clothes, shoes and accessories selected and combined by the blogger. The interest of the visitors is not limited to viewing pictures. Naturally, they are at least also interested in copying selections and combinations or finding inspiration for their own outfits. The information about the brand under which the presented products are offered and where they can be purchased answers an existing need for information.

The defendant’s explanation that she tags the depicted items of clothing, shoes and accessories in order to anticipate inquiries from visitors to her Instagram page therefore appears plausible. The defendant has also submitted examples of such requests (see Annex AG 21 to the defendant’s statement of May 23, 2018).

In this respect, the same applies as for fashion magazines, which contain corresponding information on manufacturers and sources of supply for the same reason. This is clearly illustrated by the information provided by the defendant in Exhibit BK 7 to its written submission of December 27, 2018. In addition to the products depicted, not only the manufacturer of the products is named there, but also internet addresses from which the products can be obtained.”

Furthermore, the KG Berlin correctly stated (emphasis added by the author):

“The ambition of an influencer to generate advertising revenue does not justify obliging him to provide every statement with a reference with which the public associates a subordinate or inferior value of the contribution. In this respect, nothing else can apply to an influencer than to other media companies, which are consistently financed at least by advertising revenue and are particularly attractive to clients if they reach a large number of people, regardless of whether they are referred to as readers, viewers or followers.

A differentiation according to the subject matter of the editorial reporting or the expression of opinion is not compatible with freedom of expression and media freedom. Reports on fashion trends are no less worthy of protection than reports on socio-political and daily political topics.”

Rating

While the KG Berlin had fortunately finally clarified in court that influencers such as Vreni Frost, Pamela Reif and others do nothing different from conventional fashion magazines despite the different environment, the LG Karlsruhe – like other courts before it – misjudged precisely this crucial point. The Regional Court of Karlsruhe denies influencers who report on fashion via platforms such as YouTube or Instagram rights that have always been granted to conventional publishers who report primarily on fashion in magazines with the same content as the influencers in question here. The Karlsruhe Regional Court’s view is all the more incomprehensible when you consider that influencers have always existed as ambassadors for brands and have been used by traditional print media for a long time. One example is the magazine “Barbara”, which is based on the influencer Barbara Schöneberger. Ms. Schöneberger ultimately does nothing different in “Barbara” than Pamela Reif on Instagram.