When does an Instagram post speak for itself as advertising? The German courts’ approach
In early March, the Karlsruhe Higher Regional Court decided that an influencer’s Instagram reels showcasing vehicles constituted "commercial communication" due to her close ties with major car brands (Judgment of 3 March 2026, case no. 14 UKl 2/24). The court also concluded that the promotional nature of the reels was not self-evident to such an extent that the use of the "#ad" tag would not have been necessary.
The automotive influencer in question has a verified public Instagram account followed by approximately one million users. In profile "bio" this influencer describes herself as "Content Creator & Presenter". Her posts consist almost entirely of professionally produced reels reviewing and showcasing cars from major car manufacturers such as Audi, BMW, Volvo and others. Examples of post titles include: "How to make your new Audi RS3 much louder before starting the engine", "What are your thoughts about the trunk of the new BMW M5 Touring?!", and "I mean... How cool is this Volvo EX90 light?! Have you ever seen a car winking?! Me neither!".
The influencer attended events where these vehicles were presented, with car manufacturers covering her costs of entry, travel, accommodation, and meals. None of the resulting posts were labelled as advertising. Car manufacturers did not pay any monetary contribution for the posts.
The Karlsruhe Higher Court held that the influencer's posts amounted to commercial communication, as the car manufacturers provided the vehicles featured in the influencer’s posts and covered the costs of entry travel, accommodation, and meals.
The Court further held that it was immaterial that the influencer had no contractual obligation to publish content and retained full discretion over what and when to post. In the Court’s view, the benefits influencer received were evidently granted with the expectation that she would report on the vehicles.
The Karlsruhe Higher Regional Court then turned to the issue of whether the posts required promotional labelling. Before answering in the affirmative, the Court examined the case law of the German Federal Court of Justice, according to which a commercial purpose does not need to be labelled when it is immediately and unambiguously recognisable to an average, reasonably observant consumer (Federal Court of Justice, Judgment of 13 January 2022 - I ZR 9/21), and the Hamburg Higher Regional Court, which has recognised that the commercial intent of an influencer’s post may be inferred from contextual factors — such as the use of a verified profile, a substantial follower base, and an account name that is not linked to the influencer’s real identity (Hamburg Higher Regional Court, Judgment of 2 July 2020 - 15 U 142/19).
In the case involving automotive influencer, the Karlsruhe Higher Regional Court found that the commercial purpose of the reels was not immediately recognisable from their design, as they appeared at first glance to be neutral content, similar to simple instructions or presentations. Furthermore, while the influencer had a substantial follower base capable of recognising the commercial nature of the influencer's contents, the relevant audience extended beyond these followers and included Instagram users generally interested in cars. Because Instagram distributes reels through algorithmic recommendations, these reels appeared on the feeds of users who had no prior knowledge of the influencer. For these users, profile details such as verified status or follower count were not visible, and thus could not make the commercial purpose immediately and unambiguously recognisable.
The use of "#ad" and other advertising labels is not an end in itself but a safeguard against misleading commercial practices. Within the EU, national rules on misleading commercial are anchored in the Unfair Commercial Practices Directive 2005/29/EC, which recognises that commercial intent may be self‑evident from the context. The Karlsruhe decision, consistent with the Hamburger court's decision (2020) on influencer marketing, reinforces this principle: the obligation to clearly disclose commercial intent arises only when the commercial nature of the content is not self‑evident to the relevant audience. Most other jurisdictions in the European Union are yet to crystalize a stance regarding that issue in the specific context of influencer marketing.