When are Instagram photos advertising and how do you have to label them?

If you post photos on Instagram privately to share something about your life with your friends and other interested parties, you probably do so without any further image or business intentions. The situation is different with so-called influencers, who build a real brand around themselves, develop an image and thus sometimes reach several million followers on social media such as Instagram, YouTube, Facebook, TikTok and Co. With such a reach, advertising inquiries and brand collaborations are not far away - and the resulting photo contributions must be marked accordingly. Because advertising is advertising.

Note: This post does not constitute legal advice. If you have any legal questions, please contact your lawyer!

When do I have to mark an Instagram photo as advertising and how do I mark advertising posts? Here you get answers!

When do I have to mark an Instagram photo as advertising and how do I mark advertising posts? Here you get answers!

When is an Instagram photo advertising?

Advertisements are easy to recognize as such in newspapers and linear television. That is also regulated by law. In addition, product placements and sponsorships, among other things, must be marked in television programs, series, films and the like. The “new territory” of the Internet is only just really being tapped with regard to these media regulations, as the proceedings and the verdict on Insta influencer Pamela Reif shows. Like the news berichtet, allegedly private photo posts published by her on Instagram with promotional links started the legal dispute. The result: The posts in question must also be marked as advertisements.

In short, the reasons can be summarized as in the case of the established media: If the publisher acts out of a commercial purpose by means of a business action, then applications from others must be marked. Applied to the example, this means: If Pamela Reif publishes a photo on which she lists the clothing brands of her clothes, i.e. linked, then this is clearly advertising. Because it gives its followers the opportunity to access the account and thus the shop of the linked brand from their business Instagram account with just a few clicks. This strengthens their image and sales; ergo it is advertising.

How do you have to label promotional photos on Insta?

On Instagram (as well as in a similar form on YouTube, Facebook, etc.) there is the option of marking a photo post as a "paid partnership". Then it becomes clear that the photo and the products or services described on it are shown for promotional reasons. If a business partnership does not (yet) exist and brands, manufacturers, service providers or retailers are still linked by influencers with business accounts, then at least a voluntary marking should take place. The hashtag #advertising is certainly not the wrong way to go. Or at least a note in the subordinate clause in the description of the picture.

But why does all of this have to be labeled when it has meanwhile arrived in the middle of society that there are so-called “influencers” “on the Internet”? This is also and above all due to the still quite young followers and subscribers of the Neuland celebrities. In the Tagesschau article linked above, the judge Steffen Wesche is quoted: "Young people are easier to seduce and therefore particularly in need of protection. ”- So when subscriber X and follower Y see a cool product or great clothing at Influencer Z and associate the propagated positive lifestyle with it, then they want to emulate the same by buying the products shown. If the whole thing is marked as paid advertising, the business character behind it becomes more recognizable (theoretically also for young people).

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Everything in a nutshell: mark advertising on Instagram

If you are interested in the topic and / or you are interested in the legal career of Pamela Reif, Vreni Frost, Cathy Hummels and Co., then I recommend reading the Tagesschau article. Here is a brief summary of the basic statements on labeling promotional photos on Instagram:

  • Influencers generally pursue a business purpose on their (main) channels
  • Photos with a paid partnership, advertising, etc. must be marked accordingly
  • This also applies if a short digital path (1-2 clicks or taps) to the manufacturer is voluntarily made possible
  • Private postings are either not available or if they are, then only completely without advertising and free of links
  • A separate account can and should then be set up for private content without a business purpose
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