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10 legal tips for Twitter & Instagram marketing
This article summarizes the 10 most important legal problems with marketing measures on Twitter & Instagram. It is based on one of my presentations at the hashtag.business conference, but is constantly updated.
A username can only be assigned once on both Twitter and Instagram. This raises questions similar to those when registering a domain, where it is recognized that the violation of a third party protected by Section 12 of the German Civil Code (BGB) already occurs during the registration Naming rights can be (real name, artist name, company name).
That is also possible Infringement of third-party brands, especially when it comes to known license plates, because there can easily be confusion as to whether postings are to be assigned to the account of the (well-known) brand company. However, the mere registration of a username does not constitute a trademark infringement (BGH, judgment of 13.03.2008, Az. I ZR 151/05 - Metrosex). This is only the case if the other requirements of a trademark infringement are met, including acting in business transactions, trademark use of the trademark, etc. (LG Frankfurt, decision of May 18, 2018, Az. 2-03 O 175/18).
Fun fact: Usernames that contain brand terms but indicate a critical examination of a product or company are permitted. Example: Registering the username “@apple” on Twitter would infringe the naming and trademark rights of the well-known IT company from Cupertino. On the other hand, a username like “@applekritiker” would be permissible if the account was used to critically deal with the brand's products Apple would be dealt with.
When choosing the avatar photo, make sure that you do not violate third-party copyrights. Professional photographs may just as little be used without the consent of the respective author as snapshots, comics or collages uploaded by other users. Violations can be warned for a fee.
Anyone who deals with Internet law already suspects it: Profiles used on business on Twitter and Instagram, such as company or brand accounts, always require an imprint. Private profiles, on the other hand, do not require an imprint. The decisive factor for the classification is not the subjective perception of the account owner, but the objective external effect of the profile, i.e. the content of the tweets or images. If the contributions are aimed at the promotion of goods or services or the general promotion of the company or its brands, the account must have an imprint.
The evaluation of profiles that are used in a mixed manner is often critical. Especially with freelancers, the boundaries between private posts and business advertising quickly become blurred, which is why I recommend linking to an imprint on Twitter and Instagram to be on the safe side, as described below.
tip: Use our free imprint generator to generate a legally secure imprint.
The integration of the imprint is easy, because Twitter is a own imprint field offers, in which in the best case a "speaking link" to the imprint should be included, i.e. a URL that contains the words "contact" or "imprint".
Edit mode and public version of my Twitter profile @niklasplutte
Instagram does not yet offer its own imprint field, which is why users click on the Profile description or alternatively that Website field have to evade. I recommend using a "speaking link" in the website field whenever possible (see above). For internationally oriented profiles such as the BMW Instagram account shown below, I also use the English term "Imprint“For permissible.
My colleague Thomas Schwenke describes how you can alternatively work with a 301 redirect.
4. Surreptitious advertising
Companies have an interest in effective advertising that leads the consumer to perceive the company and its products more positively in order to ultimately increase sales. Advertising is particularly credible when it doesn't look like advertising at all, but rather like the personal opinion of the person posting.
In Germany, however, that applies Separation requirement, according to which editorial content must be strictly separated from advertising content. The separation requirement can be found in various places in the law, e.g. in Section 5a (6) UWG (previously: Section 4 No. 3 UWG) or Section 2 No. 8 RStV. The term "surreptitious advertising“Describes the violation of the separation requirement, in short advertising that is not recognizable as such for the user. An example of "classic surreptitious advertising" are advertorials in which an advertising text is disguised as an editorial contribution, i.e. the advertising character is not or not sufficiently clearly indicated.
Surreptitious advertising is transmitted on Twitter and Instagram
- Posting objectively neutral tweets or images (opinions, statements, tips)
- with advertising effect for a company or its goods or services
- without marking the posting as advertising,
- if the author of the post receives money or a more than insignificant contribution in kind in return. From what value of the donation in kind there is an obligation to advertise, is controversial. Amounts between a few euros and 1,000 euros are being discussed. Danger: According to recent jurisprudence, the end of the post does not necessarily have to have been rewarded. Setting links or tags on manufacturer offers should be sufficient (see below).
The ban on surreptitious advertising is becoming more and more important in connection with so-called. Influencers, i.e. people with many followers in social networks such as Facebook, Twitter, Instagram & Co. and correspondingly high "power of opinion" (e.g. celebrities, athletes, musicians, Instagramers, YouTubers, etc.). For example, the Hagen district court convicted the influencer Scarlett Gartmann for illegal surreptitious advertising Instagram for omission.
Also in relation to Instagram The Higher Regional Court of Celle decided that it was not enough to send a sponsored post with the Hashtag #ad to be marked if other hashtags are also used in a hashtag cloud (OLG Celle, judgment of 08.06.2017, Az. 13 U 53/16). The affected Instagram post looked like this:
"To all bargain hunters: BE CAREFUL! ONLY tomorrow there is in all branches of #r. & 40% discount on eye make-up in the online shop! Have fun shopping! @m. _r. Eyes: R.Y.S.S. Mascara & M.N.Y. The R.N. Eyeshadow Palette
#blackfriyay #ad #eyes #shopping #rabatt # 40 percent "
Personally, I am of the opinion that the hashtag #ad would not have represented a permitted advertising label on its own - just like #sponsored. The OLG Celle explicitly left this question open. From my point of view, there is insufficient awareness in Germany that the abbreviation #ad should be used to refer to advertising. Better to use the recognized terms "advertising" or "advertisement". It is also important that the commercial purpose of the post is apparent at first glance. From my point of view, the safest option is to insert the advertising notice at the beginning of the description and to dispense with further hashtags or at least to insert them under the main description.
Update: That too District Court Heilbronn decided that the Hashtag #ad in the case of commercial Instagram posts by an influencer (100,000 followers) is not sufficient to identify the post as recognizable as advertising (LG Heilbronn, judgment of 08.05.2018, Az. 21 O 14/18 KfH). The influencer had written in the description of the picture:
"Link for tickets in my bio! #ad “.
Update: The Berlin Supreme Court has one Instagram User sentenced to cease and desist in numerous cases for surreptitious advertising. In most of the posts with advertising character, the Instagrammer had not inserted any advertising information. The remaining identification attempts with the hashtags #sponsoredbypanteneprov and #ad were in the view of the court insufficient to make the advertising character of the posts clear (Kammergericht Berlin, decision of 11.10.2017, Az. 5 W 221/17). Particularly interesting about the decision is that it was not clearly clear whether the Instagramer had been paid by the companies for her contributions. However, evidence was sufficient for the Court of Appeal, an "absolute" Proof of commercial character was not necessary. From the court order:
"The possibility that the respondent, who left a pre-judicial warning letter [...] unanswered, presents one or more branded articles of different origins in 15 posts without any remuneration in the above sense and always sets" speaking "links directly to the websites of the respective companies , so undertaking this purely out of pure product enthusiasm and the need to communicate, is not entirely ruled out in the current opinion of the Senate, but it is unlikely to an extent that granting temporary legal protection [...] appears necessary here. "
Update: A much criticized judgment of the Berlin Regional Court concerns the InstagramerVreni Frostwho was sentenced to cease and desist for surreptitious advertising because sheLinks and Tags on shops or social media profiles of manufacturers in their Instagram posts.
The specialty is thatVreni Frost had purchased the presented products himself and had no relationship with the manufacturers. According to the conventional view, own posts / contributions do not have to be marked as advertising in such cases. However, the Berlin Regional Court put down because of the high number of followers Vreni Frost other standards. From the judges' point of view, an influencer promotes external competition through links and tags on shops or social media profiles from manufacturers. These measures are to be viewed as business activities (e.g. to draw the attention of the linked / postponed companies to themselves and a possible cooperation), so that there is an obligation to advertise (LG Berlin, judgment of 24.05.2018, Az. 52 O 101/18 ).
The decision was heavily criticized in the media. The reasoning of the district court is, however, quite understandable, since many influencers are likely to attempt in the above way to bring themselves into play for cooperation. In practice, however, it leads to delimitation problems because it is no longer possible to clearly distinguish which posts fall into the advertising area. Just think of an influencer who posts a photo while strolling around and postpones "Starbucks" because he has just bought a coffee there. Another problem is the question of the number of followers from which the special rules of the LG Berlin should apply. In this respect, it remains to be seen whether the judgment will endure in the next instance.
The decision of the regional court was dated Superior Courtpartially canceled. According to this, social media posts by bloggers and influencers must be marked as advertising if they contain links / tags with redirects to social media accounts of other companies are suitable for promoting their sales of goods, and if the posts are not solely or primarily for the purpose of informing and forming opinions for the followers . However, posts by an influencer with links to the websites of product providers may not generally be classified as advertisements that require labeling. The content and circumstances of each individual post must be checked.
Update: In the same direction decided that Karlsruhe Regional Court. Then post an Instagram post where Tags embedded in the photo linked to brand manufacturer pages are, a business act within the meaning of § 2 Abs. 1 Nr. 1 UWG. Through it the account operator - usually a so-called influencer - promotes the advertised company as well as his own company aiming at advertising income.
Update: That too Higher Regional Court of Braunschweig followed the above trend. In the case of pictures tagged with names / brands of manufacturers on Instagram, networking is suitable for increasing the manufacturers' sales. The influencer defended the tags by receiving numerous inquiries about the products from her followers. That is not enough for the court. The goods were presented for advertising, similar to an online shop. Overall, the presentation clearly speaks in favor of a commercial activity, even if in individual cases no consideration was received from the company. If an influencer wants to invoke that his posts were editorial contributions in such a situation, he would wear the Burden of proof (OLG Braunschweig, decision of January 8, 2019, Az. 2 U 89/18).
Another decision too Surreptitious advertising on Instagram relates to a fitness model that has already issued a declaration of cease and desist with criminal penalties, with which it undertook to
"To refrain from advertising goods on the Internet with their image and / or name without marking the publication as advertising, in particular for" fittea "tea and / or" Protein Choc "spreads and / or" Power Protein 90 " "By Body Attack Sports Nutrition"
The fitness model later posted three posts on Instagram with photos in which she wore clothes from a sporting goods manufacturer and linked his Instagram and added hashtags without marking the posts as advertising. The Instagramer was then convicted of violating the cease and desist declaration, which is subject to punishment, to pay a contractual penalty of 5,100 euros (LG Itzehoe, judgment of November 23, 2018, Az. 3 O 151/18). From the point of view of the Itzehoe Regional Court, the hashtags were less decisive for the conviction, which alone would probably not have been sufficient for a violation. From an objective point of view, the combination of linking the manufacturer's profile and hashtags only allows the conclusion that the Instagramer directed visitors to her profile to the manufacturer and thus wanted to promote their sales. A different subjective motivation of the Instagramer does not matter.
tip: Companies that work with influencers should make sure to conclude a suitable influencer contract.
Update: Another decision on the subject was made Hamburg District Court in a preliminary injunction procedure against an Instagram woman with a comparatively small number of followers (4,628 subscribers, as of December 5, 2018), who had been accused of not marking posts with links to Instagram accounts of companies or hashtags as advertising (LG Hamburg, judgment of January 31, 2019, Az. 312 O 341/18). The Instagramer denied the allegation. In each case, it was about pictures from her private life such as trips or new clothes, for which she did not receive any remuneration or other benefits from the linked companies.
After the regional court had initially issued an injunction against the Instagramer, it overturned this upon objection, as it had not been made credible that the Instagramer's behavior constituted a "business act" within the meaning of the UWG. In the opinion of the Hamburg Regional Court, action is in principle necessary on the basis of a paid contract or at least in the expectation of payment or consideration. The district court recognized the difficulty of proving a commercial act, as the advertising character on Instagram would often be disguised in order to appear more credible through a private presentation of the postings and to arouse greater interest than through recognizable "real" advertising by the companies themselves to observe the principle of freedom of expression, which allows private individuals to express themselves on economic issues and also on companies and products and to make negative as well as positive recommendations in this context (BGH judgment of March 20, 1986, Az. I ZR 13/8 - Gastro critic).
Therefore, it depends above all on them Accompanying circumstances that can be indicative of the existence of a commercial act. The decisive factor is whether either a fee has been paid (OLG Celle, see above) or other advantages, such as discounts or bonuses, have been granted or at least promised (KG Berlin, see above). In addition, it must be taken into account that private posts with self-purchased products can also serve to generate attention from potential advertising customers and to increase the market value for future advertising campaigns. With that, at least also own commercial activities are promoted (see LG Heilbronn, see above). An indication can also be that the person concerned is an "influencer" with a high number of followers. This can result in a fundamental endeavor to encourage other users to buy products and thus earn money or gain monetary advantages (see LG Osnabrück, judgment of 12.06.2018, Az. 14 O 135/18).The linking of a large number of products to the respective entrepreneur's page can also be an indication of a business transaction (LG Berlin and KG Berlin, see above).
It is worth reading how the Hamburg Regional Court then weighed the likelihood of a commercial deal by the Instagramer (with emphasis on us):
"Taking into account the above is not mostly likelythat the defendant wanted to express more than just a private opinion with its product presentations. The main argument in favor of a business transaction is that numerous products have a link to the website of the respective company. Another argument in favor of such a commercial act is that a few products are also presented identically by the influencer Ms. D. and are marked there as advertising. In this respect, however, the applicants did not give a lecture on the relationship between Ms. D. and the companies offering the products presented and whether she received a fee for presenting the products.
In contrast, the respondent has insured by oath instead of, among other thingsthat she does not appear on her Instagram account or in any other media for a fee as an advertiser for any company or product that she is not doing business or for profit and has never received cash, discounts, or other consideration from any company. She further affirmed in lieu of oath, all items of clothing, accessories, travel, hotel stays, restaurant and bar visits are financed by themselves or are paid for by their parents to have. The latter is made credible by one large number of bills (Appendix AG 5), which prove that the respondent can be shown to have acquired a large part of the presented products for a fee. This also applies to the lecture on the organizer “T. B. C. "(...). The Chamber sees the applicant's submission as correctly subordinated, even if there is no contradiction to (...) the affidavit if the respondent was given the jacket presented free of charge for the duration of the recordings. In the affidavit of November 3, 2018, the respondent stated that she herself paid for all of the clothes and accessories she wore in the pictures on Instagram or received them as gifts from her parents. None of this was given to her by a company free of charge or at a reduced price in return for a post. It is correct in the starting point that after the applicant's presentation, the defendant's jacket was made available free of charge for the duration of the recordings and thus the first part (..) of the affidavit is incorrect from a purely grammatical point of view. However, the Chamber understands the information (...) in such a way that the respondent did not receive any benefits from the company for publishing the recordings on Instagram. In the opinion of the board, there can only be such an advantage if the jacket had been left free of charge or at a reduced price beyond the duration of the recordings. However, there are no indications for such an assumption.
Finally, the fact that the defendant compared with other profiles with approx. 5,000 relatively few "followers" Has. In the cases already cited by the Heilbronn Regional Court and the Osnabrück Regional Court, it was 100,000 and 60,000 respectively.
The case was also clearly different in the cited decision of the Berlin Regional Court (judgment of May 24, 2018 - 52 O 101/18). The respondent there had more than 50,000 followers and has also said that the only thing you can't see on her blog are private areas that she doesn't want to put on the Internet. In addition, the respondent employed a project manager and had a business address on the premises of an advertising agency. The respondent does not have any of this, so that ultimately only the link remains as a reference point for a business transaction, which is not sufficient after what has just been said. "
Update: An Instagram influencer with 582,000 followers who linked providers using tags and thanked a hotel for the invitation and for the great accommodation and food on her trip in her posts not marked as advertising, was convicted of surreptitious advertising by the Frankfurt Higher Regional Court. The influencer denied having received any benefits. The court disagreed. Thanks to the thanks, it is clear that Instagram has received something in return for the advertising (OLG Frankfurt, decision of October 23, 2019, Az. 6 W 68/19).
Update: A fashion and lifestyle blogger with high six-digit subscriber numbers on YouTube and Instagram was sued for surreptitious advertising for Instagram posts with tags about the manufacturers of the products. She had previously issued a declaration of cease and desist with penalties in 2018. The OLG Cologne decided that posts by influencers can be rated as a business act even if they are of an editorial or informative nature. The reason is that journalism-related activities are not withdrawn from the UWG control if they are indirectly financed through advertising. A predominantly commercial intention is to be assumed in the case of posts by influencers if they are influenced by direct payment or other, even low-value consideration. Accordingly, the influencer was sentenced to omit and pay a contractual penalty of 10,200 euros (OLG Cologne, judgment of February 19, 2021, Az. 6 U 103/20; confirmation from LG Cologne, judgment of July 21, 2020, Az. 33 O 138 / 19).
The legal instruction podcast created by Thomas Schwenke together with Markus Richter is highly recommended. Here you can listen to the 24th episode on the subject of surreptitious advertising.
The use of hashtags makes it possible to assign posts to a topic on Twitter and Instagram. For example, if you post with the hashtag #Coke If you click on the hashtag, you will see which posts have been tagged with the same keyword by other users.
Copyright It should be noted that the use of a hashtag by a user does not mean that companies are allowed to accept the third-party contribution in their own profile without the consent of the author. In my example, for example, it would not be allowed if Coke would download the picture posted by a user and upload it again in their own company account on Instagram or Twitter.
Trademark law Hashtags can be problematic if a third-party brand is used to advertise their own products. So should a Apple- Dealers, for example, don't use the hashtag #Samsung to apply for a iPhone- Use offer.
Namely The use of hashtags, especially with celebrities, harbors dangers that basically do not have to accept it if their name is advertised without being asked.
Legal tips for integrating hashtags in competitions can be found in the next section.
Both Twitter and Instagram allow competitions to be held on the platform. Always ensure that you use legally compliant conditions of participation, which in particular contain regulations on the following points:
- Eligibility to participate
- Allowable Participation Actions
- Duration of the competition (start and end)
- Determination of the winners
- (Public) notification of the winners
- Liability & warranty
For Sweepstakes There are currently no restrictions on the use of hashtags on Instagram or Twitter. It would therefore be permissible, for example, to specify the uploading of an image to Instagram with a certain hashtag as a condition for participation in a competition. It would also be permissible to make participation dependent on liking a picture (Instagram), re-tweeting a tweet (Twitter) or following a specific account.
7. Photo rights
When using photos on Twitter and Instagram, make sure that no strangers Copyrights or Personal rights get hurt. There is a legal distinction between the Upload and post of your own or other people's pictures, the Embedding as well as the share of pictures.
- Post your own photos
The Post your own photos is always permissible from a copyright point of view. However, conflicting personal rights of the persons depicted can be problematic. In this respect, think about the right to your own picture. Whether consent must be obtained from the person concerned before publication depends heavily on the respective recording, the recognizability of individual persons and the accompanying circumstances. If you want to avoid warnings, you should only use photos for advertising purposes after you have obtained verifiable consent from the person concerned for the specific advertising (preferably in writing or by email).
- Posting other people's photos
The Posting other people's pictures is only permitted if the Author's consent has been obtained for publication (if necessary, additional consent from the persons shown). The quality of the photo is irrelevant, as the copyright law itself prohibits the unsolicited adoption of the simplest snapshots. The consent should be requested as specifically as possible and documented in a verifiable manner.
- Retweets of third-party photos (Twitter only)
Twitter makes it possible to share contributions from other users with the followers of your own account via the retweet function. I consider copyright problems with retweets to be remote, because retweets are inherent in the Twitter system and the original author of the tweet had to agree to the Twitter terms and conditions when registering for the first time in order to be able to use the social media network at all. This includes agreeing to retweets.
On the basis of a current ECJ ruling, I consider the use of the embedding functions provided by Instagram and Twitter available, e.g. within the framework of the company's own website, to be permissible without any problems, since photo tweets or images posted on Instagram „may not be reproduced for a new audience or using a special technical process that differs from that of the original reproduction. "
Update: A decision by the Cologne Working Group confirms my position. According to this, retweeting tweets or photos in the copyright sense does not constitute distribution, reproduction or public access, because the original tweet is technically shared via embedding (AG Cologne, judgment of April 22nd, 2021, Az. 111 C 569/19).
8. Copyright Protection of Tweets
In contrast to photos, there is often a lack of sufficient tweets made up of text alone Height of creation. Copyright protection for text does not require a minimum scope. However, the brevity of a tweet (max. 140 characters) restricts the author's freedom of design, which indicates that it cannot be protected.
Tweets that are not protected by copyright can be copied without the permission of the original author and republished as a separate tweet or, for example, on pictures on Instagram. In the absence of copyright protection, it is not even necessary to quote the original author.
Examples of unprotected tweets:
- "When the house has wet feet" (OLG Cologne, judgment of April 8, 2016, Az. 6 U 120/15)
- "When exactly did" Sex, Drugs & Rock n Roll "actually become" Lactose intolerance, veganism and & Helene Fischer "?" (LG Bielefeld, decision of 03.01.2017, Az. 4 O 144/16 regarding the distribution of the verdict Postcards).
9. Twitter Direct Message
Twitter offers the option of sending users direct messages away from the public timeline.
If such a message contains advertisements for the goods or services of the sender's company or a third-party company, the admissibility is based on the same principles as normal e-mail advertisements. The Advertising term includes according to established case law
"Any statement in the exercise of a trade, trade, craft or professional profession with the aim of promoting the sale of goods or the provision of services" (BGH, decision of May 20, 2009, Az. I ZR 218/07, E- Mail advertising II).
If it is advertising based on this definition, the sender must send a prior, express consent of what has been written to for the specific form of advertising and the products being advertised. It should be noted that the legal requirements for generating legally compliant leads in this area are extremely high. Here you will find an overview of the requirements for legally compliant e-mail advertising.
10. Twitter Ads
Since 2015, Twitter has also offered smaller companies the opportunity to advertise on the Twitter platform. Felix Beilharz offers a detailed overview of the various types of advertising as well as practical instructions for placing advertisements.
Offer in legal terms strangersBrands in the ad text Reason for misleading users with regard to the origin of advertised products if products from alternative providers are offered on the linked landing page. Compared to the steadily growing case law relating to Google AdWords, however, I see less potential for conflict, mainly because Twitter no brand bidding provides, i.e. the placing of advertisements on protected brands of the competition. Since there is still no case law around Twitter Ads, many questions are still open.
Furthermore are conceivable General violations of competition law, for example in the form of eye-catching advertising, special offers or decoy offers.
The possibility offered by Twitter to direct the advertisements to a tailor-made target group is very critical in terms of data protection law ("Twitter Tailored Audiences"). Twitter offers advertisers the option of uploading e-mail lists, Twitter IDs or mobile advertising IDs.
In view of the fact that, in practice, legally sufficient prior, express advertising consent from the advertised users is rarely ever obtained and, in my opinion, the statutory exceptions such as the "list privilege" do not apply, I consider the application of tailor-made target groups to be illegal. My colleague Thomas Schwenke at Allfacebook created a detailed account of the very similar situation on Facebook Custom Audiences. Apart from the legal assessment, I agree with him that the practical risk of warnings or administrative measures is currently very low due to a lack of external visibility.
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