The brand has paid the fee, the video is live, and somewhere in the thread it said the creator would handle the disclosure. Internally the matter is considered closed. It is not, because the disclosure question attaches to the publication, and who carries which risk depends on who played which role in the commercial practice.
What the law actually requires
German unfair competition law does not hinge on the word "advertising" but on the commercial purpose. It is unfair to fail to make that purpose recognisable, where it does not follow directly from the circumstances and where the failure is apt to cause a transactional decision that would not otherwise have been taken.
Two things follow, and both are regularly overlooked.
There is no list of approved wordings. What matters is whether the commercial purpose becomes recognisable, not which word was used.
There is an exception where the purpose follows from the circumstances. A video from the brand's own clearly identified company account carries its purpose visibly with it; the same video on a private individual's channel, by contrast, does not.
The question is not "was there payment"
The law speaks of payment or comparable consideration. For an act benefiting a third-party business, there is no commercial purpose within the meaning of the provision where the actor receives, or is promised, neither payment nor comparable consideration from that business.
It does not follow that a product sent free of charge is harmless. A free supply can constitute relevant consideration and has to be examined as such. The absence of a monetary payment does not by itself exclude commercial character.
The presumption that reverses the burden
Here is the point that separates German law from most marketing departments' intuition.
Receipt or the promise of consideration is presumed, unless the actor credibly shows that they received none.
In practice: anyone relying on the exception has to make it plausible. It is not for the other side to prove that payment was made. For a brand that ships products without agreeing anything, that is the most uncomfortable line in the whole subject.
What that means for gifting
Anyone sending products to creators documents what was agreed and what was not. A short message recording that no publication is expected and no consideration promised is not paperwork, it is precisely the material with which something can later be made plausible.
Who answers for what
The obligation attaches to the publication; responsibility is distributed by role. Mixing those three levels is why the question never gets settled internally.
| Level | What it covers | Who acts |
|---|---|---|
| Transparency of the publication | The commercial purpose has to be recognisable | Whoever publishes, usually the creator |
| The creator's responsibility | Their contribution, their disclosure | The creator |
| The brand's own risk | Depends on its role in the commercial practice | The brand, according to its involvement |
The third row is the one that concerns a brand, and it is not automatic joint liability. It depends on how far the brand steered the publication: an approved script, a prescribed posting time, an account operated by the brand are different situations from a product shipment with no arrangement.
Why the contract clause is not enough on its own
"The creator undertakes to disclose" governs the relationship between the parties. It does not describe how a third party will characterise the commercial practice from outside. A clause is useful and does not replace checking the publication.
What "recognisable" means in practice
Because there is no prescribed wording, asking which word to use leads nowhere. The usable question is: does somebody watching the video, without expanding anything, know that this is advertising?
Three checks follow from that, and they hold for every format.
Visible without interaction. Anything that only appears after tapping "more" has not answered the question, it has postponed it.
Early enough. At the end of a video that half the viewers never reach, the notice does nothing for the other half.
Not diluted. A notice sitting among fifteen further keywords is formally present and rarely serves its purpose.
The test in one sentence
You show the publication to somebody who knows nothing about the collaboration and ask, after ten seconds, whether this is advertising. That check takes a minute and replaces every discussion about the right vocabulary.
How it surfaces in Germany
This is the difference that makes the question more pressing in Germany than in many neighbouring countries, and it appears in no statute about disclosure.
Competition law is not primarily enforced by an authority but by competitors and associations with standing. Nobody has to file a complaint and wait for a regulator: anyone active in the same market can act.
The usual first step is a warning letter demanding a cease-and-desist undertaking backed by a contractual penalty. It arrives by post, it carries a short deadline, and it demands a decision before anybody internally has had time to examine the facts.
Why that changes the arithmetic
The real effort rarely lies in the disclosure, which costs ten seconds. It lies in responding to a process that comes from outside, carries a deadline, and triggers a penalty on repetition.
Put differently: the mistake is cheap, its consequences are not. That is exactly why the check pays before publication and not after.
The objection you hear internally
"The whole industry does it this way." That may be true and does not help, because the standard is not comparative: what is examined is your own publication, not the market average. A widespread practice is, in competition law, rather more exposed than safer, because it concerns more competitors.
What the brand puts in the commission
Disclosure as a contractual obligation. Not a request but part of the order, with acceptance.
The placement. At the start and visible without expanding. Exactly where depends on the format, which is why the format belongs in the order.
The language. In German, where the video addresses a German-speaking audience.
The evidence. A screenshot of the published version, not the draft. It costs the creator ten seconds and is the only thing the brand can produce later.
The unpaid case. For product shipments with no fee, what is agreed is put in writing too.
Sources
Checked on 8 September 2026. This guide is not legal advice and does not replace an assessment of the individual case. Where this guide and the official source disagree, the source prevails.
