Recently, the German media regulators, the State Media Authorities (Landesmedienanstalten), issued a joint guidance paper on marking adverts on social media (Leitfaden der Medienanstalten, Werbekennzeichnung bei Social Media-Angeboten; “Guidance Paper”). The Guidance Paper replaces the State Media Authorities’ earlier FAQs. It is intended to help organisations and individuals to comply with the applicable statutory provisions on marking adverts and separating adverts from other content on social media, taking into consideration the different legal regimes that apply to different media: While video content is mainly covered by the German Interstate Broadcasting Treaty (Rundfunkstaatsvertrag – RStV), posts containing text and pictures are subject to the provisions of the Federal Telemedia Act (Telemediengesetz – TMG).
What content needs to be marked as an advert?
The Guidance Paper deals with different types of content and the question of whether each type should qualify as advertising. The general recommendations of the State Media Authorities are as follows:
Advertising an organisation’s own products and services. Posts/descriptions of an organisation that advertise the organisation’s own products, services or brands shall not be covered by any specific marking obligation as long as the organisation that advertises its own products and services is clearly identifiable for the relevant users. In the view of the State Media Authorities, this shall in particular apply to social media channels of renowned brands, online shops or to channels that, by their name, are clearly recognizable as commercial channels. The same holds true for artists who promote their new album or actors who promote their new movie. Where the organisation is not clearly identifiable for users, the content will need to be marked as an advert.
Affiliate links and other commercial links generally trigger a marking obligation, while linking friends to the organisation’s own products/brands/services shall not require a specific marking. Discount codes shall trigger a marking obligation.
Influencers. Where influencers receive any type of consideration – in cash or in kind – for mentioning certain brands, companies or groups of companies, organisations, products, services, geographic regions or journeys in their posts, the influencers will be required to mark their posts as adverts. As long as there is no cooperation with the organisation responsible for the products and services that are mentioned in the influencers’ posts and the posts are based on the influencers’ own decisions and free from any commercial incentive, no specific marking will be required.
However, where, in the perception of other users, the influencer’s post is intended to increase product sales, this may also trigger a marking obligation for the influencer, even in the scenario where no contractual arrangement exists between the influencer and the brand owner or organisation. In order to assess whether such scenario is given, certain criteria may be taken into account, such as (i) extremely positive ratings of certain products and/or services, (ii) invitations to buy, (iii) repeatedly posting about the same products and/or services from one and the same brand, (iv) combination of the posts with affiliate links, and/or (v) indicating of prices and buying sources.
Notably, the State Media Authorities’ approach appears to be rather relaxed, compared to the approach taken by German courts: Recently, several German courts ruled against influencers who did not sufficiently mark their posts as adverts, even if no commercial agreement was in place with the organisation responsible for the products and/or services mentioned in their posts.
How are adverts to be marked?
The Guidance Paper contains a certain “advertising marking matrix” (Kennzeichnungs-Matrix; “Matrix”) that provides an overview of the State Media Authorities’ recommendations on how to properly mark adverts. The recommendations are given separately for (i) video content (YouTube, Facebook etc.), (ii) pictures/text (Instagram, Facebook, Twitter, etc.) and (iii) blogs. The Matrix contains the State Media Authorities’ recommended wording that may be used for the marking of posts, depending on the relevant content.
Notably, the State Media Authorities take the view that using only the promotion disclosure tools offered by YouTube and Facebook shall not be sufficient to comply with the German law requirements for properly marking posts as adverts. Rather, the State Media Authorities stress that these tools may be used as an additional means to properly mark the adverts.
Where posts containing adverts are made on German language channels, English language disclosures/markings, such as “ad”, “sponsored by” or “PR Sample” shall not be sufficient.
The Guidance Paper is a useful source for all market participants who utilize social media as part of their marketing activities. Furthermore, it is more likely than unlikely that the Guidance Paper will be taken into account by the German courts. Therefore, it should be considered carefully, even though its terms are not legally binding.