Disclosing influencer advertising: Duties for businesses and creators

The core of section 26 MedienG is simple. Where a medium receives payment for the distribution of a contribution, the contribution must be clearly labelled as paid communication. The statute names three wordings: “Anzeige”, “entgeltliche Einschaltung” and “Werbung”. A labelling obligation only falls away where doubt about payment is excluded by design or arrangement. On channels where a creator alternates between paid and private content, this exception is rarely safe to rely on.

Section 2 UWG covers misleading commercial practices and the concealed commercial purpose. Even where labelling is missing or unclear from a media law perspective, competition law focuses on the overall impression. If the addressed audience perceives the contribution as editorial or personal content while a paid cooperation exists, a transactional decision may be influenced that would have been made differently without that misconception.

Both layers interact. A contribution may be challenged under media law and additionally pursued under competition law. Conversely, formal advertisement labelling does not cure every misleading overall presentation where image, text or tonality continue to convey a private impression.

Paid cooperations cover far more than a transferred fee invoice. Relevant forms include cash payments, free products, prize goods, trips, event access, usage rights in content, affiliate commission and discount codes with a remuneration component. Non-cash contributions such as long-term loan equipment, stays or trainings can also amount to consideration once they are tied to a specific contribution.

Not every gift automatically triggers a disclosure obligation under section 26 MedienG. What matters is whether consideration has flowed for the specific contribution or whether an economically linked expectation is documented. A single unsolicited product without any agreed reporting differs from a press or creator kit with clear requirements on timing, hashtag or link. This boundary must be documented case by case.

Editorial control also matters. Where the business specifies text, hashtags, links, sequence, colour scheme or timing, its responsibility for consistent disclosure increases. The creator retaining editorial freedom does not remove an agreed consideration. The actual allocation of control should be named openly in contract and briefing.

Section 26 MedienG allows a labelling waiver where the commercial purpose is unambiguous from design or arrangement. In practice the exception is narrow. On channels dominated by personal content, the border between editorial and commercial contribution blurs quickly. Anyone relying on the exception should be able to justify it for the specific contribution and the specific channel.

Some settings make the commercial purpose plainly visible. A prominently presented discount code of a known brand, an obviously campaign-formatted post or a video clearly recognisable as a commercial spot can exclude doubt. Even then it is safer to add the labelling than to rely on audience perception.

For the assessment, screenshot, video excerpt, description of the channel profile and the position in the feed belong in the file. The advertising claims self-check helps organise claim type, audience, evidence and visible qualifications. It does not replace substantive review, but makes it comparable.

The Austrian statute accepts “Anzeige”, “entgeltliche Einschaltung” and “Werbung” as wording. It should be designed and placed so that it is perceived before consumption of the contribution. For image posts the label belongs in a visible position within the post, not exclusively in a bio or at the end of long caption text. For stories or short videos the disclosure should be legible from the start and match the format.

The wording should be consistent. Switching between English, German and platform-specific expressions looks arbitrary and makes any defence harder. For the Austrian market, the statutory German wording is a suitable starting point. Additional English wording can be added, but does not replace the German label.

Where formats are multi-part, each part must stand on its own. A campaign spread across several stories cannot rely on a single label at the beginning to cover every subsequent part. A screenshot-based reconstruction only succeeds where the label appears in each contribution itself.

A robust cooperation contract regulates cooperation form, scope of contributions, channels, period, consideration, disclosure wording, approval workflow, usage rights and the treatment of later changes. It also describes which editorial requirements the business sets and which decisions remain with the creator. Without that separation, disputes about concealed commercial purpose arise later.

The briefing should be clear for each contribution. Useful items include product, key message, mandatory elements such as hashtag or link, disclosure wording, timing of publication and planned formats. Approvals should be written so it can be shown later which version was actually released. This applies in particular to story formats, where content changes quickly.

Content rights and deletion also belong in the contract. Anyone wishing to remove a version from a landing page later or to reuse it in paid ads needs clear rules on scope, duration and revocation. Missing rules add effort and uncertainty about permissible responses when a challenge arrives.

When a challenge arrives, first preserve the complete letter with service date, every contribution named and the associated contracts and approvals. Only then does substantive review begin. A quick change to the post can be reasonable, but only after preserving the original version. Otherwise evidence needed for the defence is lost.

For the next steps, the general framework of a UWG cease and desist letter from a competitor or association applies. Claim, requested undertaking and evidence are assessed separately. For possible interim relief, the topic on injunctions and interim relief covers risk of repetition, protective objective and documentation.

The collaboration with the creator should remain organised even during conflict. Who is responsible for the contribution, who approved which version and who ordered which change must be traceable. Public statements without coordination can escalate the dispute and trigger additional claims.

Useful material includes contract, briefing, approvals, every version of the contribution with date and channel, screenshots of the disclosure and evidence of the consideration. For affiliate settings, add the commission rules, the codes used and an overview of the revenue attributable to the campaign.

Prepare a timeline covering initial contact, contract, publication and later changes. Record who approved which version and how the disclosure was visible in the specific contribution. Separate unchanged original documents from later explanations or internal assessments.

If a letter from a competitor, association or supervisory body has already arrived, provide the complete document, every attachment and proof of service. These materials allow an ordered response tied to the contributions actually challenged.