What influencers and companies are allowed to do

Any company that operates social media will sooner or later encounter a multitude of legal uncertainties and some issues, on which even German courts disagree as to how the applicable laws are to be interpreted. The issues here are trademark law, copyright law and all too often accusations of unfair advertising. Another judgment concerning ad labeling obligations for influencer posts just recently made the headlines. We therefore spoke to Christian Solmecke, attorney at WBS Law, a law firm specializing in media law, and asked him what companies need to consider to be on the safe side with their social media presence.

DMEXCO: In their social media accounts, companies use many photos, some of which are their own product images and others of which are stock material. How does one correctly indicate copyright so that it can also be seen in the posting?

Christian Solmecke: Of course it is possible to work with one’s own images. If you hire an external photographer, you should make sure that you are granted the rights of use for social media and that you have an agreement regarding the naming of copyright holders. However, if you want to use stock photos, you have to make sure to buy a social media version of each image. These separate versions can actually be recognized by the fact that the copyright information can be seen in the Facebook preview images. In addition, this license is characterized by the fact that the photographer has explicitly permitted usage in social media.

DMEXCO: What is important to remember when expressing opinions and providing assessments in a forum or on a Facebook Page, for example? Is a company or a shop operator liable, for example, for statements made by uninformed users, or does this generally fall under the right to freedom of expression?

Christian Solmecke: The “notice-and-takedown” process applies in this case. The operator of a shop is not initially liable for such comments and does not have to proactively check comments or assessments for violations of the law. However, they must respond promptly as soon as an infringement has been reported to them. Then they have to check and delete the respective comment. If they do not do this, they can be warned or sued for deletion and must then pay the incurred warning and court costs. However, the operator is not considered liable as the perpetrator of an infringing statement as long as they do not adopt it as their own, i.e. by publicly agreeing with the user.

DMEXCO: What is important when it comes to ad labeling in social media? Of course, each one of the company’s posts doesn’t have to bear the information, but what about messages from influencers?

Christian Solmecke: As seen in the recent court ruling regarding Cathy Hummels, this cannot always be determined in general terms, especially when influencers, who are basically commercially active, have received no form of remuneration for a posting. According to some court rulings, it would be advisable for influencers to label any mention or linking of brand names, companies, products, other influencers or places as advertising in principle. The courts have judged influencers as ultimately always acting commercially and that users must also be informed about this. According to the ruling by the Munich regional court, very popular influencers (in the case of Cathy Hummels) can forgo labeling if no remuneration has been received for the post. After all, users were aware of the account’s basic commercial nature. Finally, the Berlin Court of Appeals ruled that you have to consider each individual post in order to decide whether the mentioning or linking of a company, for example, has an editorial association with the content of the post.

In general, you should always label a post as advertising if you have received any form of remuneration or if the post was linked to conditions. Due to the strict governing law, it would also be better to label a product if it was made available free of charge without conditions. Even if a product is portrayed too positively, such as if focus is placed on it, advertising language is used and/or image material, product or brand slogans are adopted, this has the air of advertising and results in an obligation to label it as such. Reporting on your own products or services, or linking to them without advertising doesn’t require labeling as advertising only if you clearly indicate your company’s own commercial identity. This is the case, for example, when posting on the company’s own account on Facebook or Instagram.

DMEXCO: What do companies that work with influencers have to take into account when it comes to labeling requirements? Can they be held liable if an influencer acting on their behalf forgets a “#advertising”, for example?

Christian Solmecke: Companies that commission influencers actually do also run the risk of receiving a warning or being fined. After all, they too have violated competition law. Companies are accountable for their agents irrespective of which party is at fault. Even if the influencer is contractually obliged to label ads as such, oversight may have an effect on the advertiser. The company then only has the option to recover the incurred fee from the influencer.

DMEXCO: Conversely, can a company simply use a report or video to promote its own products? Or what are the limits in this regard?

Christian Solmecke: When advertising with test results (e.g., from Consumer Reports), there are a number of competition law rules to be observed. The reference must be indicated correctly so that the consumer can consult and verify the report. Also, advertising with test results must not be misleading—for example with regard to the actual placement in comparison to competitors, content or time of the test. In addition, the wording of the test must remain identical and the overall test verdict must also be provided. From a copyright standpoint, external (test) videos may be embedded, but it is not permitted to download them and then upload them again or use excerpts of external videos. It is of course difficult from a competition law standpoint if the presentation, the text describing it, or other information gives the impression that the creator is advertising their own products, although there is no contractual relationship.

DMEXCO: The GDPR has caused uncertainty for many companies. What has changed in social media and is there something that companies are now increasingly having issues with?

Christian Solmecke: The most important thing to consider with regard to social media is the privacy policy. It is advisable to include the references that everyone has on their website in the social media or at least to link to a corresponding section on social media on their own website. It is not only necessary to provide information on general topics such as the processing of personal data via private messages or comment features and accordingly fulfill all information obligations under Article 13 of the GDPR, but also to pay special attention to Facebook Pages, for example. Since a ruling by the European Court of Justice (ECJ) in 2018, it has been clear that the operators of Facebook Pages are jointly responsible for processing personal data together with Facebook. Facebook assumes most of the data protection obligations. However, as a Page operator, the data protection declaration on Facebook must include details of which data you collect yourself, the legal basis on which this personal data is processed and who is responsible for the Page. It also needs to be made clear, which responsibility Facebook assumes for the data and that all user inquiries, assertion of rights of data subjects or contacts with the supervisory authorities can be addressed directly to the Page operator.