An influencer contract is becoming increasingly important due to the reach of influencers and their importance as a serious factor in corporate marketing. Influencer marketing is becoming more and more important and also more lucrative for advertisers.

Surveys assume that German companies pay up to EUR 38,000.00 per post on social media channels if the influencers have the corresponding reach and number of followers. And the trend is rising. With increasing economic risk, there is also a mutual interest in a contractual basis to provide legal and economic security.

Verbal agreements are therefore likely to become a thing of the past. An influencer contract does not represent a separate, new legal type of contract, but rather, depending on the individual case, a service contract, a contract for work and services or a mixed-type contract that follows the rules of the German Civil Code.

Topic Overview

  • Influencer contract – sample and key areas
  • Get legal advice!
  • Influencer – Marketing of the future
  • Influencer contract – contract for work
  • Contract drafting and IT law – lawyers can help!
  • What social media stars in Germany have to observe in legal terms
  • Risk factor influencer marketing: How to comply with legal requirements
  • Legal support for influencers: Why a lawyer can be important

Influencer Contract – Sample and Core Areas

An influencer contract should at least regulate the following core areas:

  • Remuneration of the influencer
  • Right of ownership of the product to be advertised and, if applicable, the obligation to return it
  • Specifications for the implementation of the advertising measure
  • Scope of the service owed
  • Number of posts to be sponsored
  • Duration of publication of the individual contributions
  • Specification of the social media channels to be used
  • Agreement on the labelling obligation
  • Agreement on rights of use to the images after the campaign
  • Non-competition/exclusivity agreements

Seek legal advice!

Influencer contracts are not “off the peg” contracts and must be designed individually for each case. Due to the economic risk associated with the amount of remuneration and subsequent liability issues, legal advice should be sought.

The lawyers of the Herfurtner law firm are available for a free initial consultation and will inform you about the possibilities in drafting contracts and the risks in already existing contracts. Arrange an appointment via our contact form.

Influencers – marketing of the future

Influencers are people who are considered opinion leaders due to their reach, influence and reputation in social networks. The word influencer is derived from the English word “to influence” and has been in public use since the 2000s. In the meantime, the term has also found its way into the Duden dictionary.

Due to their strong presence on social media channels such as Facebook, Instagram, Pinterest and other platforms, they are suitable for marketing and as advertising media for products. The marketing done by influencers is called influencer marketing.

There is no uniform categorisation of influencers. A classification according to the number of followers is possible in the following categorisations:

  1. Nano-influencers: 50 to 10,000
  2. Micro-influencers: 10,001 to 25,000 followers
  3. Mid-level influencers: 25,001 to 100,000
  4. Macro-influencer: 100,000 followers
  5. Mega-Influencer: over 1 million followers

Influencer contract – contract for work

An influencer contract is usually designed as a contract for services or a contract for work and labour. The decisive factor here is whether the service as such or a certain result is to be owed. This distinction is important for the legal consequences that result from it.

In the absence of an express provision as to which service is owed, the delimitation depends on the overall circumstances of the individual case. In order to prevent such uncertainties, an express provision on the subject matter of the contract should be included in the contract in any case.

In the case of an influencer contract, one must regularly assume that it is a contract for work and services. The advertising measure is comparable to an electronic advertisement on a domain specified in the contract with a contractually fixed term.

Like advertising in a newspaper or broadcasting a commercial on a video wall, influencer marketing is aimed at bringing an advertising measure to the attention of a certain group of people. This “electronic advertisement” thus determines a certain work result as the service owed (so also BGH, judgment of 17.05.2018 – VII ZR 70/17).

Influencer contract – labelling obligation

The influencer contract must also contain a provision on the obligation to label the contributions as advertising. This provision is of considerable relevance on two levels: Advertising must be labelled as such There are various provisions under federal state law on this, especially in the respective press law.

If one of the contracting parties violates such a labelling obligation and thus a legal prohibition, the contract is null and void pursuant to section 134 of the German Civil Code (BGB) in conjunction with the relevant norm.

In addition, there are further regulations in the Telemedia Act, the Interstate Broadcasting Treaty and the Unfair Competition Act that oblige the separation of commercial and journalistic content.

The quite contentious question of when an influencer’s contribution is to be classified as advertising is irrelevant in the case of an influencer contract, since the object of the contract is precisely the advertising measure.

In this respect, the labelling as advertising is obligatory in any case and must be contractually agreed in order to regulate possible liability issues. The concrete form of the labelling should also be regulated in a binding manner.

Influencer Contract – Liability

A central point of the influencer contract must be the liability of the contracting parties in the event of infringements.

Indemnities for violations of the labelling obligations, violations of the guidelines of the social media channels used as well as violations of the rights of third parties that can be traced back to the promoted post can be considered.

In addition, liability provisions in the event of breaches of the non-competition clause and the exclusivity agreement must be agreed.

Influencer contract – non-competition and exclusivity agreement

Influencer marketing only pays off for a company if the advertised product has a “unique selling point“. Such a unique selling point can also arise from the fact that the product is offered without competition on the page of the influencer.

Other advertised products from the product range of a competitor from the same product area weaken the success of one’s own marketing campaign. Therefore, it makes sense to exclude cooperation with other competitors during the contract period.

Since the influencer can be remunerated accordingly for this exclusivity agreement, such an agreement is likely to be in the interest of both contracting parties.

Contract drafting and IT law – lawyers can help!

The drafting of contracts in IT law is the central point for a functioning influencer marketing. Of course, an influencer contract does not rule out problems in the implementation of the contract, but it helps to eliminate them and prevent legal disputes.

Suitable regulations in the influencer contract make it easier for you to enforce your claims. The lawyers of the Herfurtner law firm are also available to you for this purpose. Communicate with us by telephone, e-mail and video call. To do so, make an appointment via our contact form.

What social media stars in Germany have to observe legally

In recent years, the role of social media influencers has increased greatly. These influencers have an immense reach due to their large followings and can market and promote products and services. However, with the growing importance of the influencer industry, the legal landscape has also changed. There are certain regulations that social media influencers in Germany must follow in order to protect themselves from legal consequences.

In the following, we will provide an overview of the most important legal requirements for social media influencers in Germany.

Labelling obligations

Labelling obligations are an important part of German advertising law. Social media influencers are obliged to label all promotional content they publish on their social media channels as such. The labelling obligation applies both to paid posts and to products that were provided to the influencer free of charge. The labelling must be clear and recognisable and placed at the beginning of the post.

Surreptitious advertising

Surreptitious advertising is illegal in Germany. Social media influencers are not allowed to engage in hidden advertising or promote products without labelling them as advertising. A violation of this regulation can lead to a warning.

Legal notice obligation

Influencers who publish commercial content on their social media channels must provide an imprint. This is a legal requirement and is intended to make it easier for users to contact the influencer.

Data protection

Social media influencers must also comply with data protection regulations. In particular, if they collect personal data from users, e.g. through competitions or newsletter subscriptions, they must ensure that this data is processed lawfully and transparently.

Copyright

Influencers must also respect copyright laws. They must not use images, videos or music that are protected by copyright without obtaining permission from the copyright holder. Copyright infringement can lead to claims for damages.

Overall, it is important that social media influencers in Germany observe the legal requirements in order to avoid legal consequences. A violation of the legal requirements can lead to warnings or claims for damages. Influencers should therefore familiarise themselves with the relevant regulations and ensure that they comply with them.

Influencer marketing as a risk factor: How to comply with legal requirements

  1. Competition law: In addition to the legal requirements already mentioned, companies that engage in influencer marketing must also observe competition law. For example, it is not allowed to create the impression that a product has a characteristic that it does not have in reality. Nor may a product be advertised as being particularly inexpensive or of high quality if this does not correspond to the truth. Violations of competition law can also lead to warnings and claims for damages.
  2. Fiscal aspects: Influencers who work together with companies must also observe tax regulations. If income is generated, it must be taxed. In certain cases, influencers must also apply for a VAT ID and pay VAT. Here, too, influencers should seek advice from a tax advisor at an early stage.
  3. Liability issues: Influencers who engage in marketing can be held liable under certain circumstances. For example, they can be held liable if they spread false information about a product or provide insufficient information about possible side effects. Influencers can also be held accountable for violating copyright or data protection regulations.

The role of influencer agencies in the use of influencer marketing: liability issues.

Influencer agencies are often an important intermediary in the cooperation between companies and influencers. However, they can also be involved in liability issues when using influencer marketing.

In the following, we will provide an overview of the role of influencer agencies in the use of influencer marketing and what liability issues may be involved.

Contractual relationships

As a rule, influencer agencies conclude contracts with companies in order to initiate a cooperation with influencers. The contractual relationships are decisive for the liability issue. Who is liable for violations of legal requirements or for damages that arise from the cooperation? Clear regulations should be made here to avoid potential liability issues.

Selection of influencers

Influencer agencies are often responsible for selecting influencers who are suitable for a particular project. In doing so, they should make sure that the selected influencers are actually suitable for the advertised product or service. If false or misleading statements are made about the advertised product, this can lead to legal consequences.

Content monitoring

Influencer agencies should also ensure that the content published by influencers complies with legal requirements. This includes, in particular, the labelling of advertising, the avoidance of surreptitious advertising and compliance with copyright law. Should violations of these requirements occur, the influencer agencies can also be held accountable.

Disclaimer

In practice, attempts are often made to limit the liability of influencer agencies through disclaimers in the contracts with the companies. However, these disclaimers are not always effective and can be challenged in certain cases. A careful review of the contracts and individual advice are therefore essential.

Summary

Influencer agencies play an important role in the use of influencer marketing. However, they can also be involved in liability issues. A clear regulation of contractual relationships, careful selection of influencers, monitoring of content and individual advice are important measures to avoid potential liability issues.

Legal support for influencers: Why a lawyer can be important

As an influencer, you often have to deal with legal questions and challenges. This makes it all the more important to seek legal support early on and minimise potential legal risks.

Here you can see an overview of why a lawyer can be important for influencers and what tasks they can take on with legal questions and challenges.

  1. Contract drafting
  2. Labelling obligations
  3. Surreptitious advertising
  4. Copyright
  5. Data protection

An influencer lawyer can be an important support for legal questions and challenges. From contract drafting and labelling obligations to copyright and data protection, a lawyer can help with many legal issues and minimise potential legal risks. As an influencer, it is therefore advisable to contact a lawyer early on to avoid potential legal problems.