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When is an influencer’s post considered advertising (Werbung) and must be disclosed?
1. Situations in which disclosure as advertising is required
| Situation | Must it be disclosed as advertising? |
|---|---|
| The influencer receives a monetary payment | Yes |
| The influencer receives a free product only (gift / PR sample) | Yes |
| The influencer promotes a brand they own or have a stake in | Always yes |
| The influencer recommends a product purely out of personal conviction, with no deal | No, if there truly is no business relationship or compensation (under strict conditions) |
General legal principle:
“Wenn ein wirtschaftliches Eigeninteresse oder eine Gegenleistung vorliegt, ist eine Kennzeichnung als Werbung zwingend.”
– German Federal Court of Justice (BGH), case I ZR 90/20 (“Influencer I”)
In other words: if there is an economic self-interest or any form of consideration, the post must be clearly marked as advertising.
2. How must the disclosure (advertising label) be made?
The disclosure must be:
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Clear and understandable for the average user
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Immediate, not hidden in a tag cloud
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Placed before any links, tags or discount codes
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In a language the target audience understands (for a German audience: German)
| Acceptable formulations | Insufficient / problematic |
|---|---|
| “Anzeige” (“advertisement”) | “#ad” only at the very end of the post |
| “Werbung wegen Markennennung” (“advertising due to brand mention”) | “Thanks to XY” |
| “Bezahlte Kooperation mit XY” (“paid cooperation with XY”) | Only naming the product or tagging the brand without the word “Werbung” |
The wording “in Zusammenarbeit mit …” (“in collaboration with …”) is only safe if it is clearly specified that it is paid advertising, e.g. “Bezahlte Zusammenarbeit mit …” or combined with “Anzeige / Werbung”.
3. Where should the disclosure be placed?
| Platform | Required placement |
|---|---|
| Instagram post | Within the first 2–3 lines of the caption, clearly visible |
| Instagram story | On the first story frame, in a readable font |
| YouTube | In the video description and inside the video itself (on-screen note) |
| TikTok | At the beginning of the caption / in the first visible sentence |
4. Who is legally responsible?
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Primarily: the influencer
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Possible violation of UWG (German Unfair Competition Act) if the ad is not clearly labelled
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Additionally: the advertising company / brand (Werbender)
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if the contract does not clearly require proper disclosure
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or if the company benefits from misleading advertising
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Possible consequences for missing disclosure:
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Cease-and-desist letters and warnings (Abmahnungen) from competition watchdogs or media authorities
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Proceedings by state media authorities (Landesmedienanstalten) or courts
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Fines that can reach €50,000 or more, depending on the case and authority
5. Do you need a written cooperation contract?
Yes, a written contract is strongly recommended and should cover at least:
| Clause | Why it matters |
|---|---|
| Mandatory disclosure wording (exact text, language, placement) | To ensure compliance with § 5a UWG and avoid misleading consumers |
| Number of posts, stories and campaign duration | Clear expectations and planning on both sides |
| Ownership of image and video rights (Bilderrechte) | Prevents disputes about re-use of content |
| Handling of criticism or negative comments | Protects brand reputation with a clear communication strategy |
| Payment conditions and performance expectations | Creates a professional, legally sound framework |
The editorial team has prepared this information with great care, based on extensive research and multiple sources. Nevertheless, errors or incomplete information cannot be ruled out. Please treat this article as an initial guide and always consult qualified lawyers, relevant authorities or professional advisors for binding, up-to-date legal information.
