Marking advertising on Instagram: The legal situation

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In principle, the labeling of advertising on Instagram is intended to provide users with greater transparency and protect them. A draft law was already passed at the beginning of 2021, according to which posts on social media must be labeled as advertising if they depend on something in return. This can be money or a product provided to the influencer free of charge. The law passed in May 2022 specifies the situation. If an influencer simply recommends a product from another company without receiving ukraine phone number data any money or other compensation, they do not have to label this recommendation as advertising on Instagram.

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A ruling by the Higher Regional Court (OLG) of Frankfurt am Main in May 2022 clarifies the situation: This ruling concerned the fact that links to companies using tap tags must also be marked as advertising if the influencer promotes a product provided to them free of charge. In this specific case, a lawsuit was brought against an influencer who had promoted e-books in Instagram posts and linked them without labeling them as advertising or an advertisement. The e-books had been provided to her free of charge; there was no additional payment. By doing so, the influencer violated Section 5a of the German Act Against Unfair Competition (UWG), which states that misleading advertising by omission.

However, a gray area still remains, especially with so-called unpaid advertising. So, if someone has purchased a product themselves and writes a post about it, tagging the brand purely for informational purposes, they don't necessarily have to label it as advertising on Instagram. However, because many influencers and private users are now unsure and fear a cease and desist letter, more and more posts are appearing with Instagram hashtags like #unpaidadvertisement or #advertisementbecausebrandmention.

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How must advertising be labeled?
The general rule is: Advertising must be clearly labeled as such so that it is recognizable at first glance. There is no more precise definition. Based on existing court rulings, the following guidelines are helpful:

Advertising must be recognizable at first glance, regardless of the platform and format.
The marking must be placed at the beginning of the main text.
The post must contain terms such as advertising, advertisement, sponsored or paid partnership.
Hashtags alone like #ad or #poweredby are not enough.
The marking must be permanently visible.
Anyone who wants to sell products on Instagram can now select "Paid partnership with..." for posts. This automatically marks the posts as advertising, and the name of the advertising company appears in bold in the feed. Unlike with simple tagging, the advertising nature of a post is clearly visible.