Every day we are confronted with ubiquitous advertising on social media. In addition to the classic advertising slots, however, in the last few years we can also see another type of advertising - the so-called influencer marketing. This is a commercial promotion of products, services and brands by well-known personalities who usually use their channels (Instagram, TikTok, Facebook and others) for this promotion.

Some countries have already started to adapt their legal systems to the new challenges of the digital age. Let us look at Germany, for example, which the Czech Republic can draw inspiration from, to a large extent:

The legal framework for commercial communications in Germany is provided in particular by the German Telemedia Act, the Media Treaty and the Act against Unfair Competition. The Federal Court of Justice[1] has also already addressed several legal issues related to the application of these norms in relation to influencer marketing:

• Do links in social media messages fall under the concept of commercial messages?
• How do legal requirements for advertising transparency and consumer awareness translate into influencer obligations in commercial promotion?
• Does the benefit in kind provided in return for the promotion fulfil the condition of consideration?

In judgments of 9 September 2021, nos. I ZR 125/20[2]; I ZR 126/20[3] and I ZR 90/20[4], the Federal Court of Justice gave its opinion, inter alia, on social media posts by influencers containing active links leading to the website of the seller of goods and services (in the cases examined by the court, to the Instagram of the seller in question).

The court concluded that although a mere reference to the product or service in question would not in itself fulfil the characteristics of a commercial communication, a reference leading directly to the website of the product manufacturer would already fulfil the statutory definition of advertising. The legal requirements for advertising transparency and consumer information must then be applied to such posts (the advertisement itself must be clearly recognisable to consumers and the post must be separated from other content). However, the court pointed out that the situation where an influencer promotes his own company will have to be assessed differently. In this case, it is not necessary to separate the promotional message from other content.

In its decision of 13 January 2022, no. I ZR 35/21[5], the Federal Court of Justice addressed the question of consideration within the meaning of the relevant legislation. The court stated that the influencer’s posts must be considered commercial communications within the meaning of the statutory provisions, even if the entrepreneur profiting from these communications does not provide any monetary consideration to the influencer. The Court points out that, for example, the free provision of a product or services to an influencer may also be classified as a form of consideration. If the editorial content in the media does not clearly indicate that it is a sales promotion, for which the entrepreneur has provided consideration to the influencer, it will, in the court’s view, constitute a misleading commercial practice.

As mentioned in the introduction, the legal order of the Czech Republic does not contain a special regulation of this issue, the general regulation can be found mainly in the Civil Code, the Consumer Protection Act and the Advertising Regulation Act. This legislation contains, among other things, a list of certain forms of prohibited advertising, consumer protection provisions and the powers of supervisory authorities to impose sanctions in the event of breaches of obligations under the law.

However, legislative gaps in the area of influencer marketing include the lack of a definition of influencer marketing as such, the specification of labelling of advertising and the precise definition of hidden advertising in the social media environment. Although hidden advertising is prohibited, for example, in the Law on Radio and Television Broadcasting[6], this regulation does not apply to advertising placed on social networks. Thus, two extremes often occur:

• influencers do not label messages that are advertising, and
• influencers label all of their posts as advertising “just in case”.

Both of these situations represent an undesirable state of affairs, where the consumer is denied information about the actual content of the communication. It should be clear to the consumer whether or not it is an advertisement (either from the context and content of the communication or from clear labelling of the communication).

Similarly to the situation in France, there are attempts at some self-regulation of influencer advertising in the Czech Republic – at the beginning of 2020, a team of academics from the Faculty of Social Sciences of Charles University, media associations and advertisers founded the “Fair Influencer” initiative. The organisation has created an “Influencer Code of Conduct”, which contains ethical rules for the use of social media advertising. The question, however, is whether the rules and oversight mechanisms for self-regulatory initiatives will be sufficient or whether (as in France) an extension of regulation will ultimately be needed anyway.

[1] The Bundesgerichtshof, or Federal Court of Justice, is the highest court in civil and criminal matters.

[2] Urteil des I. Zivilsenats vom 9.9.2021 - I ZR 125/20

[3] Urteil des I. Zivilsenats vom 9.9.2021 - I ZR 126/20

[4] Urteil des I. Zivilsenats vom 9.9.2021 - I ZR 90/20

[5] Urteil des I. Zivilsenats vom 13.1.2022 - I ZR 35/21

[6] Section 2(1)(q); Section 48(1)(j) of Act No. 231/2001 Coll., the Act on the Operation of Radio and Television Broadcasting and on Amendments to Other Acts