#Influencer Act – Federal Ministry of Justice and Consumer Protection is planning a change of law for more legal certainty in influencer marketing

Influencers demanded it for a long time, and now the Federal Ministry of Justice and Consumer Protection is reacting: The Ministry intends to establish a clear legal framework for free recommendations and product reviews from influencers and bloggers. A proposal for an amendment of the law was published on February 13, 2020.

The intended change of the law is due to the uncertainty for influencers and bloggers currently prevailing in social networks as a result of several court rulings on the labeling requirements of influencer posts. Since the “Vreni Frost” judgement (Berlin Appeals Court, January 08, 2019 - 5 U 83/18), social media posts in Germany have been “over-labelled” as advertising. Many influencers are now simply labeling every post in which brands, persons, or places are linked or recognizable as advertising. However, this makes it even less reliable for consumers to identify in which posts the sale of products is actually promoted.

Now, the Federal Ministry of Justice and Consumer Protection has proposed the following amendment to Section 5a (6) Unfair Competition Act:

“A commercial purpose of a business act is generally not to be presumed where it serves primarily the purpose of information and the forming of opinions and no remuneration or similar consideration has been granted.”

The element that the post must primarily serve the purpose of information and the forming of opinions is intended to prevent that the exception is applied to posts with excessive praise for products. The intention of influencers to use a post – in addition to information and the forming of opinions – to sharpen their own profiles should, however, not automatically lead to it being obliged to be labelled as advertising.

Note:

It is expected that the intended legal change will finally provide more legal certainty in the area of social networks. The Federal Ministry of Justice and Consumer Protection has called on interested influencers, associations, scientists, and brands to participate in the amendment of the law – interested parties should definitely take advantage of this opportunity! Statements (which may also be made anonymously) may be sent to IIIB5@bmjv.bund.de until March 13, 2020.