Many brand ambassadors violate competition or data protection law. Dr. Tina Gausling, specialist lawyer for IT law, explains where the pitfalls lie – and what companies have to consider when using their own employees on social media. […]
The recent BGH ruling on the labelling requirement has provided a little more legal clarity in classic influencer marketing. But to what extent does this also apply to corporate influencers? In her presentation at the Social media Conference, the specialist lawyer for IT law Dr. Tina Gausling from Allen & Overy explained what companies should consider here. Because even with corporate influencers, it must be ensured that there is no surreptitious advertising. Possible legal consequences could otherwise be warnings or interim injunctions, contractual penalties or injunctive relief and claims for damages.
“If there is a consideration, a label is always required”
“There was a lot of uncertainty about the topic of influencers in general and there was almost an ‘over-labeling’, which of course is not in the interest of the company,” says Gausling. In principle, the principle of separation would always apply, i.e. editorial and commercial content must be strictly separated, advertising must be labelled in all media and advertising must be easily recognisable and appropriately distributed. “If there is a consideration, labeling is always required. If there is no consideration, the contribution must still be marked if the overall impression is excessively advertising, “said the lawyer.
In addition, there is the Law on Strengthening Consumer Protection in Competition and Trade Law, which will enter into force on 28 May 2022. This states: “In the case of a business act exclusively for the benefit of a foreign company, only commercial purpose if influencer receives remuneration or a similar consideration or can be promised.
Dr. Tina Gausling, Specialist Lawyer for IT Law at Allen & Overy (c) Alessa Kästner / Ebner Media Group
All judgments that have so far become legally binding related to B2C influencers, and no corresponding decisions have yet been made for corporate influencers. Nevertheless, companies must also ask themselves here whether there is a business transaction, Gausling explained. The salary would speak in favour of such an action as indirect remuneration, but it could be countered by the fact that under this condition every contribution with reference to the employer would have to be marked as “advertising”. Possible distinctions would be: self-employed interests (promotion, etc.) and contributions that serve only the promotion of the employer.
“And when it comes to data protection, there are also some pitfalls that you should know about in order to be able to act in case of doubt. Because GDPR obligations also apply to corporate influencers – for example when communicating with users,“ says Gausling.
Checklist for companies working with Corporate influencers:
- Labelling is required?
- Sufficient labelling? Note wording, positioning and highlighting.
- Not all contributions are subject to labelling.
- Observe data protection obligations
- Regulate everything required in social media guidelines and / or contractually.
*Alessa Kästner is a graduate of the Burda Journalism School, volunteered at Playboy and wrote for titles such as ELLE, Freundin and Focus as well as advertise and sell. Her core topics as an INTERNET WORLD editor: Digital lifestyle, marketing trends and social media.