Influencer marketing is now a fixed part of the marketing mix — and heavily regulated. Anyone who has products promoted by influencers needs to know the disclosure rules of the UWG. Otherwise cease-and-desist letters and lawsuits threaten, not only against the influencers but also against the commissioning companies.

When a “post” is advertising

A commercial communication exists as soon as economic consideration flows for the product mention. This includes:

  • Paid posts (classic influencer commissions)
  • Free products to keep
  • Affiliate commissions for each click or sale
  • Discounts, trips, event invitations
  • Advertising agreements with longer-term commitments

Even PR samples sent unsolicited trigger disclosure duties as soon as they appear in the content. Purely private recommendations without economic link remain advertising-free — but in a dispute, the burden of proof lies with the communicator.

How to disclose correctly

The disclosure must be clear, comprehensible and prominently visible. Recognised disclosures in German-language content are:

  • “Werbung”
  • “Anzeige”
  • “bezahlte Partnerschaft”
  • “bezahlte Werbepartnerschaft mit [brand]”

Not sufficient under Austrian case law in most cases are:

  • “#ad” (too little recognisable in the German-speaking region)
  • “Sponsored” (English technical term)
  • Platform tags alone (e.g. Instagram’s small “paid partnership” marker), if not clearly visible
  • A disclosure only at the end of a long post or caption

The disclosure must be placed so that the recipient perceives it before or simultaneously with the advertising content — not retrospectively.

Stories, reels and ephemeral content

Short formats are particularly sensitive: a few seconds of attention in which the disclosure must travel along. In practice this means:

  • Disclosure right at the start of the reel
  • For stories: clearly and large in the image — not in tiny print at the bottom
  • Visible for the entire playing time (not only in second 1)

Who is liable?

In breach, both parties are regularly liable:

  • The influencer as the directly acting party
  • The commissioning company as the principal

In practice both are usually targeted. Companies that use influencer marketing should therefore:

  • Provide contracts with specific disclosure duties
  • Document briefings
  • Agree recourse for breaches
  • Spot-check posts — if an influencer gets it wrong once, they’ll get it wrong again

Prevention beats crisis management

Anyone who sets up influencer campaigns cleanly avoids by far the most common trap in modern marketing. This applies all the more to multi-influencer campaigns, where a single breach can call the entire campaign into question.

This article is for general information and does not constitute legal advice in any specific case.