Social Media: Warning, surreptitious advertising!

The golden rule of product advertising in social networks is: What is paid for must also be identified. But how exactly? And what are the consequences of failure? Christian Solmecke, 48, is a lawyer specializing in Internet and media law and a partner at the Wilde Beuger Solmecke law firm in Cologne. He knows where the limit to surreptitious advertising lies, when warnings are threatened and why particular caution is required with private photos.

SZ: Would you describe yourself as an influencer? After all, you reach several hundred thousand people with your YouTube videos.

Christian Solmecke: The fact that we are “influencers” with our various channels can hardly be denied. In fact, over the past few years I’ve noticed more and more how much influence we can have with our videos. My positions also reached politicians in the EU Parliament and the Bundestag, with whom I then had talks about the new copyright law, for example.

From how many followers does one become an influencer?

There is no fixed size here. Nevertheless, the number plays a role in competition law. The warning associations usually only warn influencers for surreptitious advertising that have a certain reach, from around 10,000 followers. But even with significantly less, there is a risk of receiving a warning. It is still unclear where the line should be drawn.

Does advertising have to be labeled on all social media channels?

Yes, the labeling requirement applies to all social media channels. It results from various laws: from the law against unfair competition, the Telemedia Act and, insofar as YouTube videos are concerned, for example, also from the Interstate Media Treaty. However, for a long time it was unclear how exactly these laws are to be understood, because influencer marketing moves somewhere in the gray area between third-party advertising and self-portrayal.

What counts as advertising, what doesn’t? And what if I bought a product myself and want to show it to my followers?

If the influencer receives consideration for a post about a product, or gets the product for free but with strings attached, they must provide a notice of promotion. Of course, also those who set advertising links or assign discount codes. However, even if the product is bought and it is presented too “promotionally”. This is the case, for example, when the product is too much of a focus alongside the editorial content, promotional language is used, or images and slogans are adopted.

Social media: In his videos, Christian Solmecke explains legal topics in a simple and understandable way.

In his videos, Christian Solmecke explains legal topics in a simple and understandable way.

(Photo: Youtube)

What do influencers have to pay particular attention to?

The notice must be so clear that it stands out at first glance and without a doubt from the point of view of the average attentive consumer. You should be on the safe side here if you place the information clearly in the photo or video. If you refer to the advertisement in the text, it should be emphasized with stylistic devices such as a paragraph, a different color or the design of the font. German references such as “Werbung” or “Display” are also recommended instead of English-language references such as “sponsored by” or “ad”. Even hashtags alone such as #advertisement or #advertisement are not enough.

What are the consequences of mistakes or omissions?

Competition law warnings are the most common. After that, the influencer has to pay the warning costs and possibly also compensation. In addition, influencers must agree to pay a contractual penalty if the violation is repeated. The authorities responsible for certain laws can also impose fines.

Are there other pitfalls that influencers and social media users need to watch out for?

Yes! The biggest stumbling block is the right to one’s own picture of the person photographed. Unless it’s a celebrity who’s not out and about purely for fun, it’s usually better to get permission before posting photos of people. And taking someone else’s photos without their consent is also an absolute taboo. The photographer’s copyrights are regularly violated here, which can also lead to expensive warnings.

Are your social media activities paying off?

Of course – both directly and indirectly. Indirectly, because we are now quite well known as a law firm and people think of us when they have a legal problem. Directly, because we also provide information about our legal products for consumers on social media and can then see exactly who clicked on this link via YouTube, Instagram or Facebook, for example. But the most important thing is probably: Social media is honestly just fun.

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