Report on the IMKR Lecture “The Chaos of Influencer Advertising on Instagram from a Consumer Law Perspective” by Dr. Wiedemann
On May 15, 2019, Prof. Rösler welcomed Dr. Denise Wiedemann, LL.M. (Lisbon), a research associate at the Max Planck Institute for Comparative and International Private Law in Hamburg, for her presentation titled “The Chaos of Influencer Advertising on Instagram from a Consumer Law Perspective.”
Dr. Wiedemann began her presentation by addressing the phenomenon of influencer marketing. Advertising by so-called or self-proclaimed influencers has rapidly gained significance in recent years. Marketing research attributes this primarily to two developments: On the one hand, due to the increasing complexity and abundance of market offerings, more and more people no longer want to inform themselves in every area but instead rely more frequently on personal recommendations. On the other hand, the internet expands the reach of communication content. Influencer marketing combines both of these developments: social networks and other online platforms (e.g., blogs) give recommendation marketing – packaged in seemingly authentic posts about fashion, cosmetics, sports, or travel – an enormous reach that transcends national borders.
The legal focus of the presentation was on the impact of influencer marketing on the application of consumer protection provisions under European conflict-of-laws and procedural law (Art. 6 of the Rome I Regulation and Art. 17 of the Brussels Ia Regulation). The consumer protection provisions of the Brussels Ia Regulation and the Rome I Regulation are applicable only if the business operator carries out its activities in the consumer’s country or directs them toward that country. Consequently, the regulations consider only those consumers whom the business has actively enticed from their home country to be deserving of protection. Dr. Wiedemann argued that businesses that have influencers promote their products or services may be subject to consumer protection provisions if the influencer marketing meets the targeting criterion.
The format of the post need not meet overly stringent requirements, as long as the company is recognizable and can be identified based on the information provided in the post. Furthermore, however, there must be evidence of the business’s intent to enter into a contract with consumers from the consumer’s country (ECJ, Judgment of Dec. 7, 2010 – Case C-585/08, C-144/09, Peter Pammer v. Reederei Karl Schlüter GmbH & Co. KG and Hotel Alpenhof GesmbH v. Oliver Heller, ECR 2010 I-12570 = NJW 2011, 505). The influencer’s post provides a basis for this if it is (also) directed at consumers in that country. Whether such targeting can be assumed must be determined on a case-by-case basis based on the origin of the subscribers and the influencer’s activity. Ultimately, the decisive factor for affirming the targeting criterion is that the influencer’s post is attributable to the business operator. For this purpose, it is sufficient that the influencer’s activity is carried out with the business operator’s knowledge and consent.
Further reading (in German): Wiedemann, Stilikonen, Travel Addicts und Food Junkies – Das Ausrichtungskriterium (Art. 17 Brüssel Ia-VO/Art. 6 Rom I-VO) im Lichte des Influencer-Werbechaos auf Instagram & Co., in: Caroline S. Rupp et al. (eds.), IPR zwischen Tradition und Innovation, 2019, p. 163.
