How lucrative is online marketing

Lucrative and risk-free: why more and more influencers are doing surreptitious advertising

InfluencerMarketing is currently undisputedly one of the most popular buzzwords in the industry: The users promise high reach, top target groups, successful campaigns and cost advertising companies a lot of money. While there are more and more doubts on the part of the company about the performance of this hyped discipline and one wonders whether the budget is really in such good hands there, one sees a massive increase in unmarked product placement elsewhere. Where is this development headed and what is the legal status quo that makes this possible? We consulted media lawyer Stefan Bahner for an assessment.

Still no regulation, but more and more cases of unfair advertising

In our article “Influencer Marketing: The Problem with Surreptitious Advertising on Instagram”, we followed the trend last autumn that influencers like to forego identification. What has happened since then? So far, no authority has given in and the cases of surreptitious advertising have increased massively recently. As one of many, GZSZ soap star Janina Uhse is setting a bad example.

The posts that can be clearly identified as advertising are pretty flat, but you won't find any reference to sponsoring here.

Other high-reach accounts are similar. And although more and more of the so-called influencers are holding unlabelled products in the camera more and more often, there is little legal change here, also thinks Media lawyer Stephan Bahner at Osborne Clarke:

In contrast to bought likes or fake reviews, there are no known court decisions that deal with the topic of labeling influencer advertising on social media. The responsible media supervisory authorities are calm and competitors who can take action against a violation of Section 5a (6) UWG are apparently keeping quiet. Associations (such as the competition center or consumer protection associations) do not seem to be addressing this issue either.

Cases that have been brought to court are therefore nil. There are probably too many competitors in the same boat and letting go is a tacit agreement. However, one or the other case will probably also be settled out of court, which is why nothing is made public here either. On the other hand, it is difficult to imagine that consumer protection will keep its feet still for a long time with the increase in product placements in social networks and the still growing popularity of influencer marketing.

The US consumer protection agency begins to reprimand

The USA is a pioneer when it comes to unfair advertising - very few people might have missed the noticeably frequent consumption of Radeberger in Two and a Half Men - but cases of surreptitious advertising have so far been handled rather laxly. That only changed after the US consumer protection agency FTC tightened its regulations and now reprimands surreptitious companies like Lord & Taylor.

A case is currently causing a stir in which Warner Bros. is said to have paid popular YouTubers, including LetsPlayer Pewdiepie, for positive reviews. The FTC recently published a complaint to the film and television company criticizing the company for paying high-reach YouTubers thousands of dollars for good reviews years ago. Bugs and other negative statements should not be mentioned in the reporting, as The Verge reports. The FTC also criticizes the fact that the video is marked with a sponsored in the description, but this is no longer recognizable if the material is otherwise shared and embedded. The parties involved do not have to expect any direct financial consequences. However, the negative PR casts a slight shadow over the otherwise flawless image of Felix Kjellberg for the first time. This in turn was not long in coming with a statement:

The video is a little longer than five minutes, but it's worth listening to the statement. For those who would like to briefly summarize: Kjellberg is outraged that all the media are jumping on the bandwagon without questioning whether the report is true. He points out the marking in the video description and describes the media attention as clickbait in his name. Now one can argue about where the labeling should take place - after all, it is written somewhere.

Influencers are unmolested and outlawed on social networks

It is different with the German women and men influencers. It is undisguisedly quite colorful here. And that presumably without any consequences. Because the laws against unfair advertising are actually used more frequently in the print sector, according to Bahner:

In contrast, camouflaged advertising in print media was and is more often the subject of legal proceedings. This will be due to the fact that, according to the press laws, “paid publications”, if they are not recognizable as an advertisement based on their arrangement and design, must be clearly labeled with the word “advertisement”. In the print sector, it is therefore regularly a question of the fact that this expressly required marking is not attached. The legal regulations for labeling advertising on social media are less clear because they do not require specific express labeling. This uncertainty is apparently being used successfully. In fact, the boundaries are fluid.

In fact, there is no clear regulation in German laws that prohibits the lack of labeling of advertising in social networks. The interpretation and jurisprudence depends on the respective regional courts. It can be sufficient to name the company, but the connection to the advertising influencer should be clear:

From my point of view, it is less critical when a professional footballer holds his sponsor's shoes into the camera. It is clear to the viewer that the footballer earns money with it. In these cases, in my opinion, the marking with # [name / brand of the sponsor] is completely sufficient. It is then clear that the protagonist did not post the picture for private pleasure. It becomes more critical if the influencer is not recognizable as a professional in the advertised area: If a television presenter posts (sponsored) football boots, it will not come out that she is doing so on the basis of a contractual agreement with her sponsor or even in return for receiving them the shoes do. Here you will get a clearer indication, e.g. B. # sponsored # [name / brand of sponsor]. Identical labels would be necessary for - apparently - purely private individuals who only describe their good personal experiences with a product. Those influencers who already have a large number of followers are interesting for companies. In the case of such, one could argue that their appearance (e.g. a blog) is overall commercial and they always make - paid - advertising for the product shown, so that identifying information is not required at all.

It is difficult to imagine that this issue would remain unresolved in court.

In what time frame this should take place, however, one can certainly imagine with the mills that grind in Germany.

By the way: Even if companies give products away to influencers and they then present it as positive on their blog or on a social network, this is still surreptitious.

A complex problem

Apart from the fact that the courts will probably still take their time to give in, product recommendations are also problematic in other ways. The influencers are placed in a lot of trust by their fans and this is also where the problem of surreptitious advertising is located. The influencer is to be assumed not to advertise the products out of conviction, but because they have received them as a gift or payment. In this area, however, there are still too many ambiguities for concrete statements to be made about the expected consequences.

In order to protect yourself and the fans in the future, however, it is advisable to play with open cards and not allow yourself to be put under pressure from any side, not even for higher pay. Honesty contributes to a great extent to authenticity and that's basically one of the goals of influencers.

Studied social science with a penchant for online and marketing. Was editor and content manager at OnlineMarketing.de from 2014 to 2019.