Free products
A product provided free of charge counts as consideration. If the creator presents it, the post must be labelled as advertising, even if no fee was paid and no requirements were set.
Knowledge for brands
Labelling influencer advertising correctlywhat brands and creators need to know.
Advertising must be recognisable as advertising, even when it appears on a creator's profile. Here you can read which German laws apply, what the media authorities recommend, what the Federal Court of Justice (Bundesgerichtshof, BGH) decided in 2021 and why the commissioning brand also bears responsibility.
When a post has to be labelled
A post must be labelled as advertising if a creator promotes a company or product and receives something in return. This consideration is not just money but also a free product, a commission, a trip or any other benefit. The commercial purpose must be immediately recognisable unless it is already clear from the circumstances.
If a creator demonstrably receives nothing in return and recommends a product on their own initiative, the post is, under the legal position since 2022, generally not advertising that requires labelling. However, the law presumes that consideration was received unless the creator credibly shows that it was not.
The relevant provisions
| § 5a Abs. 4 UWG | Under the Act against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb, UWG), anyone who fails to disclose the commercial purpose of an act is acting unfairly. Expressly regulated since 28 May 2022: without consideration, acts benefiting another company have no commercial purpose, but consideration is presumed until the contrary is credibly shown. |
| § 6 Abs. 1 DDG | Commercial communication in digital services must be clearly recognisable as such, and the party on whose behalf it is made must be clearly identifiable. The Digital Services Act (Digitale-Dienste-Gesetz, DDG) replaced the Telemedia Act (Telemediengesetz, TMG) on 14 May 2024. |
| § 22 MStV | Under the Interstate Media Treaty (Medienstaatsvertrag, MStV), advertising in telemedia must be clearly recognisable as such and clearly separated from other content. The state media authorities (Landesmedienanstalten) oversee this. |
What the media authorities' guide recommends
The German state media authorities have published a guide on labelling advertising in online media. It is not a law, but it shows how the regulator interprets the rules. The guide still refers to the TMG; in substance its advice continues to apply to § 6 DDG.
- Use the German terms ‘Werbung’ (advertising) or ‘Anzeige’ (advertisement). In the media authorities' view, English terms such as ‘Ad’ or ‘Sponsored’ and hashtags such as #sponsored are not sufficient for a German audience.
- Place the notice at the beginning, before the actual content, not at the end of a long caption or among lots of hashtags.
- Label videos for as long as the advertising is visible, not just in the accompanying text.
- Label every individual Story frame that contains advertising.
- In livestreams, display the notice permanently while the advertising is running.
- Make sure the notice is large enough and has enough contrast to be readable immediately on a smartphone.
What the BGH decided on 9 September 2021
On 9 September 2021 the Federal Court of Justice ruled on three cases concerning advertising by female influencers (I ZR 90/20, I ZR 125/20 and I ZR 126/20). According to these rulings, a post for which the influencer receives consideration cannot be published without a label. This applies even if the post itself only shows everyday images.
Without consideration, it depends on the content. A post with an excessively promotional character, for example a link to a manufacturer's website that goes beyond mere information, may still require labelling. In the cases decided, however, an image with tap tags pointing to the brands of the clothing worn did not need to be labelled. The legislator adopted this line in 2022 with the new version of § 5a Abs. 4 UWG.
Common special cases
Affiliate links
If the creator earns from sales via a link or discount code, that is consideration. The post must be labelled as advertising; an asterisk next to the link is not enough on its own.
Own products
If a creator promotes their own products or those of their company, this is also commercial. The advertising character must be recognisable unless it is clear from the context.
Platform tools
Instagram and Facebook offer the ‘Paid partnership’ label, and TikTok has a toggle for branded content. These tools are a useful addition, but in our recommendation they do not replace the notice ‘Werbung’ or ‘Anzeige’ at the start of the post.
Duties for brands and creators
The creator who publishes the post is primarily responsible for labelling. But the brand is not off the hook.
- 01
The creator labels
The creator places the notice correctly and in the right position. Breaches can lead to formal warning letters (Abmahnungen) from competitors and associations as well as action by the media authorities.
- 02
The brand covers it in the contract
Labelling belongs explicitly in the contract and the briefing, with the exact wording and placement.
- 03
The brand checks before publication
Under § 8 Abs. 2 UWG, companies can be liable for competition law breaches by those acting on their behalf. Anyone who approves posts before publication should check the labelling too.
- 04
Both keep records
Agreements, approvals and evidence of the published posts should be kept so that, in a dispute, you can show what was agreed and implemented.
Not legal advice
This page gives a general overview as of October 2026 and does not replace legal advice on individual cases. For campaigns through FNLY Agency, we cover labelling in the contract with the creator and check every post before publication. For binding advice, please consult a lawyer.
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FAQ
Frequently asked questions
When does influencer advertising have to be labelled?
Whenever a creator receives something in return for a post, such as money, a free product, a commission or another benefit. The relevant provisions are § 5a Abs. 4 UWG, § 6 Abs. 1 DDG and § 22 MStV. Without consideration, labelling may not be needed, but consideration is presumed until the contrary is credibly shown.
Is #ad enough as a label on Instagram?
Not in the view of the German state media authorities. For a German audience they recommend the terms ‘Werbung’ or ‘Anzeige’ at the start of the post. English terms such as ‘Ad’ or ‘Sponsored’ are not considered clear enough.
Does a product received for free have to be labelled?
Yes, if the creator presents it in a post. A free product is consideration within the meaning of § 5a Abs. 4 UWG, even without a fee and without requirements from the company. The post then needs a notice such as ‘Werbung’.
Do affiliate links have to be labelled?
Yes. If a creator earns from sales via a link or discount code, they receive consideration and the post is advertising. An asterisk next to the link alone does not make this sufficiently clear.
Is the brand liable if the influencer does not label a post?
That is possible. Under § 8 Abs. 2 UWG, companies can be liable for competition law breaches by those acting on their behalf. Brands should therefore cover labelling in the contract and check it before publication; in individual cases, legal advice will clarify this.
What did the BGH decide on influencer advertising in 2021?
On 9 September 2021, the BGH ruled in three cases (I ZR 90/20, I ZR 125/20, I ZR 126/20) that paid posts must always be labelled. Without consideration, it depends on whether the post is excessively promotional, for example through a link to a manufacturer's website.
Is Instagram's ‘Paid partnership’ label enough?
The label is a useful addition; whether it is sufficient on its own has not been conclusively settled. We recommend also writing ‘Werbung’ or ‘Anzeige’ at the start of the post. This is general information and not legal advice.
How is advertising labelled in videos and livestreams?
The media authorities' guide recommends labelling videos for as long as the advertising is visible. In livestreams, the notice should be displayed permanently and the title should make the advertising character clear.
Labelling
Campaigns without labelling risk
For campaigns through FNLY Agency, we cover labelling in the contract and check every post before publication.