Where does the chaos begin?

Chaos “Abmahngate” - where does content end and where does advertising begin?

"Advertisement for tagging people", "Advertisement for branding", "Advertisement because I have no idea when to use it" - if you scroll through your feed on Instagram or look at the stories of influencers, almost every post is included one of these sentences. The uncertainty seems great: Why do all influencers, bloggers and other people in public life currently mark their photos and videos as advertising or advertisements?

This uncertainty was triggered by a judgment against blogger Vreni Frost. Vreni Frost is a successful blogger, writes on topics from the areas of lifestyle, beauty and fashion and is also committed to transparency and credibility in the blogger industry.

Some of her pictures on Instagram seem to be her undoing: she posted photos of herself, for example with balloons in front of a garage, and tagged the various brands of her outfit - not a paid cooperation, but a personal recommendation. The Association of Social Competition found that she should have marked these images as advertising and sent her both a warning and a declaration of discontinuance. Since then, Vreni Frost has been resisting these allegations vehemently and sees no difference in her pictures to brand names in lifestyle magazines, and her blog also lives from editorial content that is not advertised. The dispute between the association and Vreni Frost went as far as the Berlin district court, which in the first instance gave the association social competition law. Vreni Frost now has to mark every contribution as advertising as soon as it has tagged brands or people from public life. The blogger sees this judgment as a "slap in the face for every media maker" and is appealing, which is why her case is now before the Berlin Court of Appeal.

Vreni Frost is not an isolated case - many bloggers are currently receiving warnings and cease and desist letters, many pay the warning fees and sign because they are insecure. Other bloggers support Vreni Frost in her fight for transparency and against a general wave of warnings from bloggers. The problem that currently prevails in Germany is the lack of legal bases that regulate the labeling of advertising in social networks. For this reason and out of solidarity with Vreni Frost, many influencers are currently marking all posts on Instagram as ads. How effective this form of solidarity is can be discussed. But the question that should finally be asked after all the warnings, lawsuits and indiscriminate labeling on Instagram is whether the legal decisions of the last few weeks contribute to the transparency and credibility of the Instagram community or whether they do exactly the opposite?

In any case, trust in social media in Germany is not particularly high, as current study results show: Only 27% of users perceive social media as credible - with increasing use of the platforms. It is therefore obvious that an answer to problems is needed: Nina Schwichtenberg, founder of the fashion and lifestyle blog “Fashiioncarpet”, recently appealed to Dorothee Bär, Minister of State for Digitization, that there is an urgent need for action and that decisions should not be made from individual to individual . Using features such as “paid partnership with”, it was previously easy for followers to understand whether an advertising cooperation existed or not. Because many bloggers are currently marking all content as advertising, it is no longer apparent to the user what is paid content and what is not. There is a lot to clarify: When is a post advertising? Is there a difference in reach an account has when it comes to tagging ads? Which groups of people have to characterize collaborations - just bloggers or actors, musicians and companies?

Influencer marketing has long been a successful, economically viable business model in which advertisers are investing ever higher budgets and in which more and more influencer agencies are emerging. In March, Goldmedia forecast that influencer marketing would grow from 560 million euros to 990 million euros in the DACH region by 2020. What does this legal gray area that is revealed in this debate mean, also economically? Do advertisers hold back their budget for the time being until the situation has eased and there are legal bases in place? Is the house of cards “Influencer Marketing” now threatening to collapse because it still lacks the foundation? At Lead Digital, lawyer Christian von Strobl-Albeg even goes so far that the restricted "freedom of movement" comes very close to an influencer professional ban.

It must be clear to all market participants, regardless of whether they are influencers, advertisers, the federal government or competition associations, that a solution must urgently be found here in order to finally give influencer marketing the stability and transparency that all parties demand. Dorothee Bär is taking a first step here, initiating a roundtable with all those involved.


By Ariane Schmidt