Correctly Labeling Instagram Advertising

This is how you, as an influencer, legally label your advertising on Instagram.

instagram-werbung-kennzeichnen
instagram-werbung-kennzeichnen
Table of contents
  1. The current legal situation for advertising labelling on Instagram
  2. No labelling as advertising and recommendations
  3. Correct labeling of paid Instagram advertising for influencers.
  4. Correct labeling of unpaid Instagram advertising for influencers.
  5. Correct labeling of paid Instagram advertising for companies
  6. Here's how you label your Instagram advertising
  7. Helpful tools for your influencer marketing
  8. Conclusion on labeling Instagram advertising

There is hardly any topic in the field of influencer marketing on Instagram that is discussed as much as the correct obligation to label advertising. We see daily accounts of influencers, where Instagram advertising is not or only inadequately marked in posts, stories or reels.

The confusion and misunderstandings have their reasons. The legislation in the field of influencer marketing in Germany is insufficient. However, it will be further expanded in the future. The relevant provisions in the Act against Unfair Competition (UWG) (Source) will change at the end of May 2022.

Nevertheless: Ignorance does not protect against punishment. Even in 2021, there are rules that everyone who is publicly active on Instagram should adhere to. Failure to comply with the obligation to label Instagram advertising can be accompanied by hefty fines of up to EUR 500,000. Neither companies nor service providers are doing themselves any favours by implementing influencer marketing without the correct labelling of Instagram advertising.

Labelling each post with "Advertising" or "Advertisement" on Instagram is also not a solution. That's why you will receive a guide on how to correctly label your Instagram advertising. We receive support from Diploma-Lawyer Dr Christina-Maria Leeb, who shares her expertise in media law and influencer marketing with you. However, this does not replace professional legal advice.

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Let's start with the status quo in case law regarding Instagram advertising labelling. In the past, there have been several court proceedings dealing with the obligation to label Instagram posts. The verdicts, however, were sometimes different.

The most recent rulings were delivered on 09 September 2021 by the Federal Court of Justice (BGH) (Source). These were three proceedings. The plaintiff was the Association for Social Competition (VSW), which sued influencers Cathy Hummels, Leonie Hanne, and Luisa-Maxime Huss for surreptitious advertising because of missing labelling of Instagram advertising. In several Instagram posts of the defendants, the images were labelled with so-called "Tap-Tags" (Tap-Tags show the respective provider's profile when clicked, and on a second click, they direct you to the corresponding Instagram account).

Beispiel für Tap-Tag in Instagram-Beiträgen

Example for Tap-Tag in Instagram posts

The most well-known object of the proceedings against Cathy Hummels was a small plush elephant from the Steiff brand, which the influencer had marked with a tap tag (note: The tag has since been removed.). She did not label this as advertising - arguing that she had bought the toy herself.

The verdict was briefly summarized by Dr. Christina-Maria Leeb: "Everything for which influencers have not received any consideration and everything that does not exhibit advertising surfeit (i.e., is not excessively praising), does not have to be labelled as Instagram advertising. Tap tags alone do not lead to an advertising surplus. It is also essential to note that a service does not just mean money, but, e.g., free or discounted products. Virtually anything that presents a monetary advantage."

However, the BGH made a difference for self-purchased products when directly linking to the company's website. This is seen as an advertising surplus and thus must be labelled as advertising.

So what does this imply for implementation?

No labelling as advertising and recommendations

Products or services purchased by oneself generally do not count as advertising and may be labelled, provided the presentation is not overly advertising. For example, if you go out to eat privately or pay for your accommodation on holiday yourself, you can mark the provider for your followers.

Typical example for Tap-Tags: You create an Instagram story and are then asked multiple times by your followers what brand the outfit you wore is. It would then make sense to respond to your followers in another Instagram story and link the corresponding brand's Instagram account.

But be careful! Some influencers want to draw brands' attention to them as potential partners and extol the virtues of their products, although they bought them themselves. This is where things can get tricky: According to case law, excessive praise is deemed advertising. And as we've already read, correct, a labelling of advertisement for the product is then obligatory.

Our recommendation for you: 

There is nothing wrong with putting a warm sentence about a product or a service. But save yourself superlatives like, "This is the most amazingly best thing I've ever had!" (Besides, such melodrama is annoying). Also, always keep receipts or hospitality bills when you present something on Instagram. We would avoid a direct link to the online store or the provider's website due to current case law.

Beispiel-Instagram-Werbung-selbst-gekauft-richtig-und-falsch-kennzeichnen.png

Marking items you have bought yourself is fine. A direct link to the website/online shop is considered an advertising surplus and would need to be labelled.

But what does the lawyer, Dr Christina-Maria Leeb, think of this: "In case of remaining doubts about the existence of an obligation to label, I still recommend labelling. And yes, please keep the receipts for self-paid products or services at all times."

Correct labeling of paid Instagram advertising for influencers.

There is probably not much we need to say about the correct labeling of Instagram advertising: if a company or provider pays money for the presentation on Instagram, this must always be labeled as advertising.

If you as an influencer promote your own products, you must also mark them as advertising.

Correct labeling of unpaid Instagram advertising for influencers.

Statements such as "I just went there to eat because they invited me" or "I received the products as a gift" are not arguments for not labeling the Instagram post or the Instagram story as advertising. The moment you enter into an advantageous agreement with the company in any form, the obligation to label applies.

It doesn't matter if you are invited to a concert, fly for free, or get a voucher for a wellness treatment. Products that companies send you for free are considered the aforementioned "consideration" and must - although at first glance unpaid - be labeled as advertising.

Correct labeling of paid Instagram advertising for companies

There is nothing wrong with offering influencers a consideration or sending your product to them to present it on Instagram. Please point out in writing that this must be labeled as Instagram advertising. It is also advisable to include a hint on the "how" of advertising labeling. Companies can also be penalized for surreptitious advertising.

A popular example was the 2017 court ruling on the lack of advertising labeling in posts by influencers for the drugstore Rossmann. Well-known content creators advertised Rossmann products without labeling them as advertising. (Source)

Not only can this be considered surreptitious advertising, but you are also deceiving the followers, giving the impression that the influencers bought the product of their own accord.

If such a thing comes out, not only does the content creator lose credibility. Your company will also be viewed with a bland aftertaste, and you will lose consumers or potential customers.

Checklist for the legal obligation to label advertising for companies by Dr Christa-Marie Leeb:

Checkliste zur Kennzeichnungspflicht von Instagram-Werbung für UN

Checklist for the obligation to label Instagram advertising for companies

Here's how you label your Instagram advertising

The highest commandment: Make the note clearly visible! While Instagram supports Branded content with its own tools - they are not legally secure.

Beispiel für Instagram-Branded-Content

Example for Instagram-Branded-Content

Advertising in Instagram posts or reels:

The implementation of advertising labeling is easy. The term "Advertising" or "Advertisement" must stand first. Either as a hashtag or highlighted in some other way (e.g., uppercase letters). Often, the word "Advertising" is at the end of the caption or is placed between hashtags. However, this is not the right way.

Also, do not write "Ad" or "Promo", as it is considered insufficient.

Beispiel für eine richtige Nutzung von Tap-Tag im Instagram-Bildbeitrag

Example for a correct use of Tap-Tag in the Instagram picture post

Advertising in Instagram Stories:

In Instagram Stories, each single clip, in which the product is shown or discussed, should be marked with "Advertising" or "Advertisement".

The following design options for IG Story advertising are insufficient:

  • To make the font size in the term "Advertising" or "Advertisement" so small that it can only be deciphered with a magnifying glass.
  • To make the text color in the term "Advertising" or "Advertisement" match the background image.
  • To push the term "Advertising" or "Advertisement" so far to the edge that only "Adve…" is recognizable.

We know that countless influencers do it this way. But here too: No! Just no!

An influencer who correctly marks advertising in her stories is carmushka.

Beispiel für Instagram-Werbung richtig kennzeichnen in IG-Story: Werbung deutlich und sichtbar gesetzt vs. Werbung schlecht lesbar

Example for correctly labeling Instagram advertising in IG Story: Advertisement clearly and visibly set vs. Advertisement barely readable

Helpful tools for your influencer marketing

Tools and software for influencer marketing are now helpful for identifying influencers for your company and for implementing a professional cooperation. An overview of such Instagram tools and our customers' experiences can be found on OMR Reviews.With

CreatorIQ you get a comprehensive tool that accompanies you from selection to campaign management for your influencer cooperations.For those who are in the field of nano and micro influencers, the software

Hivency might be interesting. It relies on AI (Artificial Intelligence) and offers personal customer-success-manager support.Alternatives for the aforementioned influencer marketing tools are:

Conclusion on labeling Instagram advertising

If you follow all of this, nothing can really go wrong. The important thing to say in the end is: Do your homework!

The moment you operate your Instagram professionally(er) or want to realize influencer marketing as a company, please familiarize yourself with the basics! Even with an Instagram profile, which you use as a private person, you are not protected from admonitions. Regular research for updates is less time-consuming and cost-effective than a proceeding due to surreptitious advertising.

The Guidelines of the Media Authorities – Advertising Labeling in Online Media of the state media authorities provide a good overview of advertising labeling in social media.

Lastly, here's a brief outlook from Dr Christina-Maria Leeb about the development in case law:

"After the first principle rulings in September 2021, the BGH will deliver many more rulings in the coming months that relate to this topic area. This offers the chance that more and more legal security will be created for influencers and companies. As of the end of May 2022, the key factor will be the receipt of a consideration. It is important to know that the receipt of a consideration will be assumed by law. Unless the influencer can credibly demonstrate that he/she has not received such a consideration. In a dispute, this presumption can be refuted, for example, by presenting the purchase receipt or a confirmation from the company that no consideration has been granted for the statement."

Franziska Ide
Author
Franziska Ide

Franziska Ide berät Unternehmen und Selbstständige im Bereich Social-Media und Content-Marketing. Zudem schreibt sie für Magazine wie LAYERS und lebt auf Frühstück mit Fride ihre Leidenschaft für Essen und Morgenroutinen aus.

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Dr. Christina-Maria Leeb
Author
Dr. Christina-Maria Leeb

Dr. Christina-Maria Leeb ist Wissenschaftliche Mitarbeiterin bei der HEUSSEN Rechtsanwaltsgesellschaft mbH in München, Fachbereich IT-/IP- und Medienrecht.

All Articles of Dr. Christina-Maria Leeb

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