Recently, the German media regulators, the State Media Authorities (Landesmedienanstalten), issued a joint guidance paper on marking adverts on social media, which is available in German language here (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...