Platform operators must ensure transparent advertising disclosure in influencer videos

In its judgment of 11 March 2026, the Bamberg Regional Court ruled that Google, as the operator of YouTube, must not allow influencer videos to be published unless their promotional nature and the identity of the client are made sufficiently transparent. The decision concerns, among other things, the question of whether a notice of paid advertising displayed for just ten seconds meets the requirements of the Digital Services Act (DAS) – and, in particular, what responsibility platform operators bear for ensuring their users comply with advertising labelling obligations. 

Background: Influencer marketing and a lack of transparency 

The claimant, the Baden-Württemberg Consumer Advice Centre, objected to the practice on YouTube whereby influencers could publish sponsored videos without the promotional nature of these videos being made sufficiently transparent and permanently identifiable. Specifically, two videos were the subject of the complaint: in one case, a so-called ‘Finfluencer’ promoted a particular brokerage app and displayed the notice ‘Contains paid advertising’ for just ten seconds at the start of the video. This notice disappeared completely after ten seconds and was not displayed again even when the video was rewound. In the second case, an influencer opened numerous parcels delivered by the mail-order company Temu in her video, with only the brief advertising notice appearing. In neither case was the sponsor named. 

The defendant, Google Ireland Limited, as the operator of YouTube, did provide the influencers with a function enabling them to label their videos as paid advertising. However, under the defendant’s system, the disclosure of the specific sponsor was merely optional. 

The decision of the Bamberg Regional Court 

The Bamberg Regional Court ordered Google in the main proceedings “to refrain from allowing influencers on the www.youtube.com/de platform to publish videos that are financed or sponsored by third parties, unless the promotional nature of the videos is made sufficiently transparent and clear in real time, and unless the third party financing or sponsoring the influencer in connection with the creation of the videos is named”. Contrary to what the operative part might suggest, these are two separate claims: one concerns the labelling as advertising, and the other concerns the naming of the sponsor. 

Labelling as advertising 

“Real time” means: throughout the entire duration of the video 

At the heart of the decision is the interpretation of Section 26(2) sentence 2 of the German Data Protection Act (DSA), according to which the labelling of commercial communication must be “clear and unambiguous and in real time”. The court makes it unequivocally clear in this regard: a reference to paid advertising lasting merely ten seconds does not fulfil the real-time requirement. The term “real time” is to be understood as meaning that the advertising notice must run simultaneously with the video and extend over its entire duration or at least the vast majority of it. 

The court rejected the defendant’s argument that it should suffice for the notice to appear at the same time as the start of the video. This interpretation would mean that even a display lasting just one second could suffice, provided it coincides with the start of the video – a conclusion which the defendant itself presumably does not accept. Nor did the English and French language versions of the DSA relied upon by the defendant support a different conclusion. 

Insufficient prominence of the disclosure 

In addition to the temporal aspect, the court found that the label was not sufficiently highlighted. In the Finfluencer’s video, the notice of paid advertising was almost completely obscured by a yellow advertising banner for the broker being promoted, which spanned the entire width of the screen. The advertising notice itself was in an inconspicuous shade of grey and placed at the top left of the screen. A reasonably attentive and informed consumer could easily have overlooked this notice. 

Furthermore, the videos were interrupted several times by regular YouTube adverts, meaning that the notice ‘Contains paid advertising’ could just as easily have referred to these adverts. 

Obligation to name the sponsor 

The court upheld the second claim for an injunction on the grounds that the defendant must ensure that the third party providing the funding is also named in sponsored influencer videos. This obligation arises from the labelling requirements under Section 6(1)(2) of the German Digital Services Act (DDG) in conjunction with Sections 24(1) and 1(7) of the Media Services State Treaty (MStV). According to case law, influencers who engage in commercial communication on YouTube are to be classified as service providers within the meaning of the DDG and are subject to the corresponding labelling requirements. 

Liability of the platform as a host provider 

Of particular significance is the recognition of the defendant’s own liability under competition law as a platform operator. The court bases this on the duty of care under competition law as a host provider: anyone who, through their actions in the course of business, creates a risk that third parties may infringe the interests of market participants protected under competition law is obliged to limit this risk to the extent that is possible and reasonable. The court clarified that the removal of the specific infringements does not constitute a disproportionate interference with the defendant’s freedom of enterprise, as the infringements are sufficiently specific and the defendant can rely on automated techniques. 

The limitation of liability under Section 6(1) of the German Digital Services Act (DSA) does not preclude the claim for an injunction, as, pursuant to Section 6(4) DSA, the possibility of requiring the service provider to cease an infringement remains unaffected. 

Practical consequences 

Platform operators 

At the time of publication of this article, it is not yet known whether the defendant has lodged an appeal. 

Following the decision of the Bamberg Regional Court, platform operators such as YouTube will have to revise their systems for advertising labelling. A mere reference to paid advertising in the first few seconds of a video is not sufficient – rather, the labelling must remain visible for the entire duration of the video and be clearly highlighted visually. In the court’s view, the defendant can implement these requirements with manageable technical and financial effort. 

Furthermore, the sponsor’s name must in future be an integral part of the video. According to the Bamberg Regional Court, purely optional disclosure options do not satisfy the legal requirements. 

Claimants, advertisers 

The Bamberg Regional Court’s ruling sends a clear signal for greater transparency in influencer marketing and addresses enforcement difficulties that repeatedly arise in practice, particularly in cases involving foreign elements, by opening up further avenues for claimants to take direct action against platform operators. 

In particular, the decision calls for a comprehensive review of unwelcome or one’s own market conduct: In the Bamberg Regional Court case, the claim for an injunction against Google is based in one instance primarily on Section 26(2) of the UWG, and in the other on Section 6(1)(2) of the DDG in conjunction with Sections 24(1) and 1(7) of the MStV. The UWG serves merely as a framework here; the actual substantive breach of duty, however, is defined by the DSA and media law. Provided that the criteria for a market conduct rule are met, the offence under Section 3a UWG also allows a multitude of other regulations from a wide variety of fields to be incorporated into competition law. 

Furthermore, in certain cases it may be worthwhile to consider options beyond the usual enforcement in civil proceedings in this country: For instance, in the field of environmental advertising (decision of 20 February 2025, ref. I ZB 26/24), the Federal Court of Justice (BGH) had to deal with an order issued by the Federal Environment Agency, which, at the request of the Belgian authority ADEI, prohibited a German long-distance coach operator from advertising using the terms “climate-friendly” and “environmentally neutral” for the Belgian market, procedurally based on Regulation (EU) 2017/2394 on cooperation between national authorities responsible for the enforcement of consumer protection laws. The legality of the order was confirmed by the Federal Court of Justice. 

It is all the more worthwhile to look beyond civil and administrative proceedings, as misleading advertising and sustainability claims can also trigger fines and sanctions with significant financial consequences where there are breaches of specific statutory requirements. This is illustrated by a further example:

The Frankfurt am Main Public Prosecutor’s Office, in turn, investigated sustainability claims made by an asset manager as a breach of the German Capital Investment Code as part of a preliminary investigation. The proceedings concluded with a fine of EUR 25 million. (See the german Tagesschau report on this, last accessed on 13 April 2026).

References
Bamberg Regional Court, judgment of 11 March 2026 – Ref. 1 HK = 19/25
Federal Court of Justice (BGH), order of 20 February 2025, Ref. I ZB 26/24