The Higher Regional Court of Cologne (decisions of 14.02.2022 and 17.03.2022 – 21 U 81/21) has ruled in favour of one of Germany’s most successful influencers that the claim for damages against her for failing to publish two Instagram posts is unfounded. The influencer, who was represented by Straßer Ventroni Freytag Lawyers, had been sued by the provider of a lifestyle product for compensation for the (alleged) loss of profit. It was disputed between the parties whether the influencer was obliged to carry out the two Instagram posts claimed by the plaintiff. The plaintiff calculated his alleged claim for damages in the abstract. He argued, inter alia, using parameters relevant in e-marketing (conversion rate, number of followers, contact price per thousand, engagement rate), that he should have been liable for damages within the meaning of Sec. 252 S. 2 of the German Civil Code (Bürgerliches Gesetzbuch – BGB), he would probably have made a profit in the 6-digit range if the influencer had made the two posts. The Regional Court fully followed the argumentation of Straßer Ventroni Freytag Lawyers and dismissed the action.

In the appeal proceedings, the Cologne Higher Regional Court now confirmed the first-instance judgement with its above-mentioned decisions and dismissed the plaintiff’s appeal pursuant to Sec. 552 II S. 2 ZPO. The court left open whether the influencer was obliged to carry out the posts at all, because there was in any case a lack of sufficient presentation of the claimed lost profit. In this regard, the court stated, among other things, that the possibility of abstract calculation of damages in the sense of a presumption based on the usual course of events, which is recognised by case law in commercial transactions when selling goods at the market price, does not apply to advertising contracts between influencers and providers of the products to be advertised. For the answer to the question whether and to what extent advertising posts by influencers had led to the conclusion of purchase contracts with the plaintiff for the advertised products, the principles applicable to commercial purchases would not apply.

Moreover, the plaintiff had not substantiated that, according to the usual course of events, sales of a specific number of products could have been expected. The plaintiff had not succeeded in conclusively presenting the necessary starting and connecting facts. In particular, the conversion rate cited by the plaintiff was not sufficient for this purpose. The conversion rate was merely a percentage figure of website visitors who had carried out a desired action during a certain defined period of time. However, as remained undisputed in the proceedings, the action did not necessarily have to result in the purchase of a (specific) product. For example, registering for the newsletter or submitting a review also qualified as an action. The conversion rate therefore did not lead to the obvious conclusion of how many users were actually persuaded to buy a product from the plaintiff as a result of the posts of the influencer. Rather, it would have been incumbent on the plaintiff to present a concrete business profit and loss account from which possible profits and losses could be determined for the future probability forecast. The simplification of evidence resulting from Sec. 252 S. 2 of the German Civil Code (BGB) and Sec. 287 of the German Code of Civil Procedure (ZPO) only applies with regard to the fact that an estimate can be made for the later period on the basis of earlier operating results. The appeal was not admitted.

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