Influencer Liability: Agencies & Legal Risks

Liability of Influencers and Agencies for Advertised Products: Legal Risks and Current Developments

Influencer marketing has become an integral part of modern advertising. Influencers recommend products and services of all kinds on social media platforms, ranging from cosmetics and fashion to food supplements and cryptocurrencies. But what happens if an advertised product turns out to be a scam, such as a fake crypto token with no value or a dubious diet product with false promises? In such cases, the question of liability arises. Can injured followers or customers claim compensation from the influencer? Are the agencies or companies in the background that organized the campaign also liable?

This article provides a comprehensive look at the legal basis in Germany for the liability of influencers and agencies for advertised products. It analyzes German civil law (in particular tort and contract law), competition law—especially the Unfair Competition Act (UWG)—and media law obligations (e.g., under the Interstate Media Treaty). We will use current surreptitious advertising rulings and other important case law decisions to clarify the status quo.

Furthermore, we examine how influencers can protect themselves contractually (keyword: exemption from liability in the cooperation agreement). We also consider what checks they should carry out when selecting sponsors and products, and which insurance policies—in particular professional liability insurance for influencers—cover corresponding risks. Finally, the new European Directive on representative actions (transposed into German law in 2023/2024) will be included. A brief comparison with class action lawsuits in the USA serves as a benchmark for the liability pressure influencers and companies face elsewhere.

Civil Liability of Influencers: Contract and Tort Law

From a civil law perspective, a distinction must be made between two constellations: Contractual liability on the one hand and tortious (non-contractual) liability on the other. Both could become relevant in the relationship between influencers and third parties (followers, customers) if damage is caused by a product recommendation.

No Direct Contractual Relationship with the Follower

As a rule, there is no direct contract between influencers and their followers. If a viewer buys a product based on an Instagram story, the purchase contract is concluded between the follower and the manufacturer/shop of the product, not between the follower and the influencer. Therefore, the disappointed buyer can generally only direct their contractual warranty or compensation claims against the selling company, not against the advertising influencer.

A consultancy agreement or information contract between the influencer and the follower is also not normally concluded by simply consuming the content. Influencers usually make general recommendations without providing individual advice. Consequently, contractual liability of the influencer towards the end consumer is generally excluded.

Liability from the Contract with the Advertising Company

There is typically a cooperation agreement between the influencer and the advertising company or its agency. In this contract, the influencer undertakes to post certain content and receives remuneration or benefits in kind in return. However, this contract creates internal obligations between the influencer and the client.

If the influencer breaches their contractual obligations, for example by not posting as agreed or violating conditions, the company can claim fulfillment or compensation. Conversely, the influencer may have claims, e.g., for payment of remuneration. However, third parties (followers) cannot derive any direct rights from this contract, unless a contract with protective effect in favor of third parties has been exceptionally agreed—which is unusual in influencer marketing.

A contract between a company and an influencer can be indirectly important. For instance, it may contain liability exemptions or guarantees.

Tortious Liability for Incorrect Recommendations

Far more relevant in practice is the question of whether influencers are liable in tort if they cause damage to followers through their recommendations. This could include financial losses due to a fraudulent investment or damage to health due to a dangerous diet product. Liability in tort under the German Civil Code (BGB) generally requires the tortfeasor to violate a legally protected interest or a protective law:

Section 823 para. 1 BGB protects life, body, health, property, and other absolute rights. An influencer who, for example, promotes a product hazardous to health (such as a banned "fat burner") could endanger their followers' health. If someone suffers concrete damage as a result (e.g., poisoning), liability under Section 823 (1) BGB could be considered. However, the influencer would have to prove a breach of their duty to communicate, meaning they negligently created the danger—e.g., because the product was obviously unsafe, and they still advertised it. Pure financial losses (such as the loss of money invested in a fake coin) are not covered by Section 823 (1) BGB, as the loss of money in itself is not "property damage" in the sense of tort law, as long as no other right has been violated.
Section 823 para. 2 BGB: In this case, the person who violates a protective law is liable. A protective law is a legal norm that serves to protect the injured party. For example, provisions of the Criminal Code or special consumer protection laws can be considered. Fraud (Section 263 StGB) is such a protective law—it protects assets from deception. If an influencer knowingly claims false facts to lure money from their followers for a worthless product, this may constitute fraud.
For example, an influencer advertises a cryptocurrency token and claims it is a safe investment with guaranteed doubling of the stake, although they know the project is a Ponzi scheme. If their followers carry out deceptive financial transactions in this way, the influencer could be liable to prosecution and civil liability under Section 823 (2) BGB (for violation of Section 263 StGB as a protective law). Similarly, violations of food law prohibitions or the German Medicines Act (in the case of prohibited diet pills) could be invoked as protective laws. However, the hurdle is high: the influencer must have acted with at least gross negligence, or even better with intent, for such a tortious claim to apply.
Section 826 BGB (Immoral Intentional Damage): This standard applies if someone intentionally causes damage to another person in a way that is contrary to public morals. If an influencer actively participates in fraud or fraudulent misrepresentation—e.g., spreading lies in agreement with the product manufacturer to harm their fans—this would probably be considered intentional immoral damage. The influencer could then be liable for damages in accordance with Section 826 BGB. In practice, however, the influencer would have to prove a direct intention to deceive. Such liability may be considered particularly if influencers are quasi accomplices in a fraud scheme (such as a decoy in a Ponzi scheme).

Burden of Proof and Negligence

It is often difficult for injured consumers to prove that an influencer is sufficiently at fault. If the influencer was not aware of any danger and recommended the product in good faith, there is a lack of intent or gross negligence. Claims under Section 823 (2) or Section 826 BGB are then ruled out.

However, simple ignorance does not always provide protection. An influencer cannot blindly rely on the information provided by the advertising partner if it is obviously questionable. For instance, extreme promises of salvation ("Lose 10 kilos in a week without exercise!") or unrealistic promises of returns on financial products should make any reasonable person suspicious.

Influencers have a certain duty of care to check information before passing it on. If they seriously violate this duty of care, negligence liability could theoretically also be construed. In practice, however, this becomes difficult due to the lack of a direct basis for claims for pure financial losses, as long as no protective law is violated.

Interim Civil Law Result

Overall, direct civil liability of influencers towards consumers in Germany is only enforceable in exceptional cases. In most instances, the injured customer will have to take action against the manufacturer/service provider (contractual partner).

Nevertheless, influencers should not underestimate the risk. Anyone who advertises a fraudulent product through gross negligence or even knowingly can find themselves exposed to considerable claims for damages, especially with large reach, where individual damages quickly add up to high amounts in dispute. In serious cases, there is also the threat of criminal liability in addition to civil claims. From a legal perspective, influencers are entrepreneurs (BGH, judgment of 09.09.2021 – Influencer I) and cannot expect to be exempt from legal liability for frivolous behavior. It is therefore advisable to work carefully as a preventative measure and to strictly adhere to the following competition and media law requirements.

Competition Law Requirements: UWG, Misleading and Surreptitious Advertising

Irrespective of individual claims for damages, unfair competition law and in particular the Unfair Competition Act (UWG) play a central role in influencer marketing. Although the UWG primarily protects competitors and fair market behavior, it ultimately also protects consumers from unfair business practices. Two areas are particularly relevant: Surreptitious advertising (unlabeled advertising) and misleading advertising (false or deceptive statements about products).

Labeling Obligation and Surreptitious Advertising

If an influencer posts advertising content, the commercial purpose must be clearly recognizable to the average consumer. Hidden advertising in seemingly private or editorial posts is referred to as surreptitious advertising and is not permitted. The prohibition used to be found in Section 5a (6) UWG (old version) in conjunction with the so-called separation requirement; today it is regulated in the UWG and also under media law.

The “blacklist” of the UWG (appendix to Section 3 (3)) lists the following as a consistently unfair act under No. 11: “Editorial content paid for by a company without this being clearly recognizable from the content or design.” An influencer post that actually conveys advertising from a third party but is not labeled as an advertisement fulfills precisely this definition.

Recent surreptitious advertising rulings have specified the requirements. In the years 2017-2019, some regional courts (e.g., Berlin Regional Court, Celle Regional Court, Karlsruhe Regional Court) ruled inconsistently on whether influencers must label posts without payment but with links to brands as advertising. Some argued that such posts also serve the influencer’s self-promotion and the initiation of future collaborations, which is why there is an obligation to label them. For example, in a ruling from 8 May 2018 (Ref. 21 O 14/18 KfH), Heilbronn Regional Court assumed surreptitious advertising when an influencer linked brands in Instagram photos without having been paid for them—reasoning: unpaid tags also indirectly promote the influencer’s own business. This strict line was not uniformly shared.

The Federal Court of Justice then provided clarity in three landmark decisions in September 2021 (judgments of 09.09.2021, ref. I ZR 90/20 – Influencer I; I ZR 125/20 – Influencer II; I ZR 126/20 – “Plüschelefant” case ; and later I ZR 35/21 – Influencer III in Jan. 2022). The BGH differentiates:

If the influencer acts “commercially for the benefit of another company”, i.e., promotes third-party products, a labeling obligation always exists if the influencer receives something in return. A consideration can be money, but also free products, invitations (press trips), commissions, etc. The decisive factor is that there is some form of cooperation with the company. In Influencer I, for example, the defendant influencer had received a fee for an Instagram post; this post was marked with “advertising”, but only in the body text and not clearly enough—the BGH considered the labeling to be insufficient and confirmed that clear labeling at the beginning of the post is necessary in such cases.
If the influencer has not received any consideration, for example because they recommend a product on their own initiative, a labeling obligation may still exist, but not in every case. The BGH ruled that the placement of so-called tap tags (brand links on images) alone does not require labeling as long as the influencer reports on the product objectively and without exaggerated promotion. If there is no consideration, there is generally no commercial purpose “for the benefit of another company” according to the new legal situation (this was expressly clarified by the legislator shortly after the BGH rulings in Section 5a (6) UWG, often referred to as the “Influencer Act”). However, the situation is different if the post is “excessively promotional”—for example, if an influencer praises a product effusively without being commissioned to do so, as if she were part of an advertising campaign. According to the BGH, this can then be considered a commercial act for the influencer’s own company (enhancing their image), which also requires transparency.

To summarize: As soon as any form of payment or benefit flows, it must be labeled “advertising”! In 2022, the legislator stipulated in Section 5a (6) UWG (new version) that a commercial purpose is presumed when presenting third-party products if the influencer receives a consideration or is promised one. The presumption can only be rebutted if the influencer proves that there is no consideration—for example, through proof of purchase, affidavit, etc. In practice, this means: if in doubt, attach a label to avoid risking a warning for surreptitious advertising.

Misleading Advertising and Content Verification Obligations

In addition to the form (labeling), the content of the advertising is, of course, also regulated. Influencers may not make false or misleading statements about products. Section 5 UWG prohibits misleading commercial acts, in particular with regard to the nature, properties, prices, or success of a product.

Influencers who attribute effects to a diet product that it does not objectively have, or conceal the high risks associated with a financial product, are acting unfairly. For instance, an influencer advertises a dietary supplement with the words “Guaranteed 10 kilos weight loss in 2 weeks, scientifically tested!”—in truth, there is no such effect. This would be clearly misleading. The consequence: warnings under competition law by competitors or consumer protection associations are possible.

In addition, sectoral regulations may apply, e.g., the German Drug Advertising Act (HWG) or the Health Claims Regulation for food advertising, which prohibit certain health claims. In our example, the influencer could be in breach of the EU Regulation on nutrition and health claims, which is also subject to a warning.

The practical case of “dubious diet products” highlights this point: In recent years, influencers in the fitness and nutrition sector have been criticized more frequently for promoting dubious weight loss products. The “More Nutrition” case caused a stir: Here, a dietary supplement manufacturer had worked with influencers to market products with health-related promises. The Foodwatch association issued a warning to the company for violating approved health claims.

The influencers’ statements were also in the spotlight because they suggested that you could lose fat effortlessly with these powders and bars, which was not the case. This shows that influencers must expect consumer advocates or competitors to scrutinize their statements carefully. Unfair advertising claims can result in injunctive relief and, if necessary, court bans. In 2021, for example, the Cologne Regional Court ruled against a manufacturer (and indirectly its influencer advertising) for misleading health claims (keyword “fitness foods,” Kölner Stadt-Anzeiger reported on the ruling against More Nutrition).

For influencers, this means you should use narrow, verifiable information from the client and not “invent” any further-reaching promises. If in doubt, it is better to avoid lurid claims.

Who is Liable for UWG Violations? Influencer, Company, and Agency

In the case of violations of the UWG—be it surreptitious advertising or misleading advertising—the responsibility is multi-level:

The influencer himself is liable as the perpetrator of the unfair act. They act as an entrepreneur in the course of business and can therefore be sued by competitors or associations for injunctive relief (Section 8 (1) UWG). Compensation for damages against competitors is also theoretically possible (Section 9 UWG), but requires intent or negligence and concrete damage to the competitor, which is difficult to prove. In practice, warnings to influencers due to a lack of labeling have occurred very frequently. In the past, some influencers have signed cease-and-desist declarations or been ordered to cease and desist by the courts if they repeatedly failed to mark advertising posts as such.
The advertising company (the manufacturer or retailer of the advertised product) may also be liable even though it did not carry out the unfair act (the post) itself. The reason for this is the provision of Section 8 (2) UWG. It states that the company owner is also liable for infringements of competition law by agents. An agent is any person who—without being an employee—works for the company to promote its sales. Case law has clarified that influencers are considered agents of the advertising company if there is contractual cooperation. The company can therefore not exonerate itself by claiming to have “only carefully selected” the influencer or to have given them instructions on labeling—it is liable for the breach of law regardless of culpability. The purpose of the regulation is to prevent companies from shifting responsibility away from themselves by outsourcing advertising to independent influencers. As a result, competitors or consumer protection associations can issue warnings to both the influencer and the company and sue for injunctive relief.
For example, a fashion company has several influencers advertise its new collection via an agency. One influencer does not mark the posts as “advertisements”. A competitor (another fashion company) notices this and has lawyers send warning letters to the influencer and the fashion company. Both are asked to refrain from the behavior in the future and to promise contractual penalties. The fashion company cannot argue that it told the influencer to label correctly—liability for injunctive relief applies regardless of fault. Only if the post was made completely without the company’s knowledge and without any instruction from the company (“self-initiative” of the influencer, e.g., a fan posting) would the company not be a party and therefore not liable.
Finally, the agency that mediates between the company and the influencer or manages the campaign plays an intermediate role. Under competition law, the agency can often also be regarded as a contributory cause—at least as an interferer or participant. Some warning letters also hold agencies responsible, especially if unclear agreements on labeling have been made. However, Section 8 (2) UWG primarily holds the entrepreneur (client) liable for agents. The agency is usually an agent of the company itself. In our example, the fashion company could also be liable for errors made by the advertising agency involved. Conversely, the agency can also be held liable under certain circumstances, for example if it actively participated in the concealment of the advertising. In practice, however, associations will focus on influencers and advertising companies, as the claims for injunctive relief are clearly regulated there.

Legal Consequences of UWG Violations

In competition law, the main threat is injunctive relief and the associated warnings, which are often subject to costs. Influencers who have engaged in surreptitious advertising, for example, have already had to pay legal fees for warning letters or have been banned by the courts. As explained above, the company may also be obliged to cease and desist.

In addition, in blatant cases, a competitor may be entitled to claim damages (e.g., if it can be proven that customers were lured away by the unfair advertising) or the claimants may be entitled to claim profit skimming (Section 10 UWG) if the infringement was intentional. In practice, compensation among competitors is rare because the specific damage is difficult to prove. The UWG does not offer consumers any direct claims for damages—but their interests are indirectly protected by preventing misleading advertising.

In summary, influencers must observe UWG compliance: Avoid surreptitious advertising (clearly label every paid post) and provide truthful information. The same applies to supporting agencies and the advertising companies—they share responsibility and should actively ensure that campaigns comply with unfair competition law. In the next section, we look at the special media law regulations that also address the issue of labeling and even provide for fines.

Media Law Obligations under the Interstate Media Treaty

Parallel to the UWG, there are media law regulations on the separation of advertising and editorial work. The Interstate Media Treaty (MStV), in force since November 2020, is particularly important for influencers. This state treaty of the German federal states obliges providers of telemedia (including social media channels) to label advertising and to observe certain content limits.

The German Interstate Media Treaty states that advertising must be clearly recognizable as such and clearly separated from other content. The state media authorities, which act as supervisory authorities, have published guidelines on this. Specifically, Section 22 (1) of the MStV requires, for example, that advertising on social media services must be clearly identified by visual or acoustic means or in a separate location. A hidden advertising post therefore not only violates the UWG, but also public media regulations.

The special feature of media law is that infringements can be sanctioned with fines. While the UWG leaves enforcement to affected companies or associations, the state media authorities intervene on their own initiative. In recent years, influencers have increasingly been targeted by the supervisory authorities. For example, in 2023, the Landesanstalt für Kommunikation Baden-Württemberg (LFK) imposed a fine of €10,500 on an influencer for missing advertising labeling in 14 Instagram and TikTok posts. The influencer lodged an appeal, but the case went all the way to the Higher Regional Court.

The Stuttgart Higher Regional Court finally ruled in 2024 (case no. 6 ORbs 24 Ss 89/23) that the influencer must pay a fine of €9,500 for 19 labeling violations found. The judges clarified that, according to the Interstate Media Treaty, all of these posts should have been clearly marked as advertising. This surreptitious advertising ruling on a media law basis shows: Missing labeling is not just a trivial matter, but can also have regulatory consequences.

The fines may seem manageable in individual cases (usually a few thousand euros), but they are a preventative signal. In addition, continued violations can result in higher penalties—according to the MStV, five- to six-figure sums are theoretically possible, depending on the severity. It is interesting to note that the media authorities have expanded their control radius: In 2024, they registered and penalized around 80 violations by influencers, some of them in new areas such as live streams and short videos. This means that influencers cannot rely on getting away “scot-free”, even if no competitor warns them—the authorities themselves are watching.

In addition to advertising labeling, there are other obligations in the Interstate Media Treaty, such as the protection of minors (not making content that is harmful to children’s development accessible), labeling of long-term commercials, product placement information, etc. For typical influencers, youth protection issues are particularly relevant if, for example, they advertise gambling apps or alcohol—platform regulations and legal age restrictions must be observed here. Political advertising is also subject to special rules. These aspects go beyond the core of our question, but show that influencers operate in a regulated media law environment and should be aware of the requirements.

Practical tip at this point: Influencers should study the media authorities’ guidelines. The “Obligation to label advertising in social media” is explained there with examples. If in doubt, it is better to write “advertising” once too often on a post than once too little. And be careful with platform functions: the displayed tags such as “Paid partnership with …” on Instagram fulfill the labeling requirements, but must be set correctly. Ideally, the formal implementation should also be contractually agreed between the company and the influencer—more on this in the section on contract design.

Current Case Law: Liability and Responsibility in Influencer Marketing

In recent years, there have been a number of important court decisions that explore the responsibility of influencers, agencies, and companies in social media marketing. Some key points from the case law are summarized here:

BGH 2021 (“Influencer” rulings): As outlined above, the Federal Court of Justice has clarified the labeling obligations with the influencer rulings (I ZR 90/20 etc.). These rulings relieve influencers to the extent that purely privately motivated posts without consideration are no longer considered surreptitious advertising across the board. At the same time, however, they emphasize that influencers act commercially as soon as there is a cooperation—and then owe transparency. The BGH principles were adopted by the legislator in 2022, which has provided influencers with some legal clarity.
OLG Stuttgart 2024 (fine for surreptitious advertising): The aforementioned ruling confirmed that influencers with high follower numbers (~400,000 in this case) must consistently pay fines if they systematically violate labeling requirements. Important: The influencer probably argued that she had shown some products out of conviction. However, the review revealed 19 cases in which there was an advertising link without labeling. This underlines the fact that courts tend to scrutinize rather strictly—in case of doubt, a commercial act is assumed if there is any cooperation.
Contributory liability of agencies: There are judgments that hold agencies or intermediaries liable. For example, the Higher Regional Court of Frankfurt (judgement of 19.05.2022 – Ref. 6 U 56/21) ruled that an agency that organizes influencer marketing for a client can be held liable as a contributory tort feasor if it intentionally and adequately-causally contributes to the infringement. The specific case concerned the use of photos by influencers in breach of copyright—the agency had prepared the content. Transferred to labeling: If an agency were to advise its influencers to disguise advertising, it could also be prosecuted. Reputable agencies are therefore very careful to ensure legal compliance in the briefing. This highlights the importance of strategic planning for influencer agencies.
Liability of the company for influencer misconduct: There are numerous first-instance judgments on this, such as LG Munich I, judgment of 24.05.2018 – Ref. 4 HK O 8143/17, where a brewery was warned for Instagram posts by an influencer (with beer brand mention without advertising reference). The brewery was liable as a principal pursuant to Section 8 (2) UWG. The ruling emphasized that it was irrelevant whether the influencer had acted contrary to instructions—the company bears the risk. This is in line with established case law: celebrity testimonials in traditional advertising (e.g., TV commercials) were also regarded as agents; the companies behind them are fully liable for their advertising statements. Influencers are no exception here, as illustrated by cases like BGH: Amazon is not liable for errors of affiliates in a related context.
Misleading statements by influencers: One example is provided by the Berlin Regional Court in its ruling of 21.03.2019 – case no. 52 O 101/18, where an influencer was prohibited from advertising a dietary supplement with certain health-related promises, as these were misleading and inadmissible under EU law. The court made it clear that influencers must adhere to the same advertising rules as any other advertising company. Even if they may have received the statements from the manufacturer, they must check whether these statements are legal in their own interest.
Personality rights and influencer advertising: It is worth mentioning in passing a BGH decision from 2022 (BGH VI ZR 489/19), which concerned the civil liability of an influencer for a post that infringed the rights of a third party (a photo with a person without consent for advertising purposes). The BGH affirmed the liability of the influencer for infringement of personal rights. This shows another facet: influencers must not only observe the UWG, but also data protection and personality rights, otherwise there is also a risk of claims. This is less important in our context, but for the sake of completeness, it should be mentioned that anyone who films people in advertising clips, for example, or provides testimonials without consent risks civil law claims. This extends to areas such as copyright and personality rights for creators.

Overall, the case law reflects the growing professionalization of influencer marketing. Courts treat influencers in principle like any other advertising company, with all the legal consequences. Agencies and companies in the background cannot shirk their responsibility but must take demonstrably proactive measures to prevent legal violations.

Responsibility of Agencies and Companies in Influencer Campaigns

Agencies often play a key role in the influencer business: they bring advertisers and influencers together, negotiate contracts, and coordinate campaigns. In doing so, they share responsibility for the legality of the advertising. The advertising companies are also responsible as clients. The responsibilities of agencies and companies can be outlined as follows:

Agency as Contractual Partner of the Influencer

The influencer often does not conclude the cooperation agreement directly with the product company, but with a commissioned marketing agency or influencer agency. This agency acts on behalf of the manufacturer and provides the influencer with briefings and specifications. In this constellation, the agency is typically a vicarious agent of the company and at the same time an agent within the meaning of Section 8 (2) UWG. This means that if the influencer does something wrong (e.g., surreptitious advertising), the company is liable and can take internal recourse against the agency if it has breached its obligations.

Conversely, the agency can also be targeted directly if it does not fulfill its control function. It is good practice for agencies to have compliance clauses in their contracts with advertising companies: the company obliges the agency to work towards compliance with all labeling obligations and advertising rules. For example, the agency must make it unmistakably clear in the briefing: “The advertising character must be made clear, no inadmissible promises, no violations of platform guidelines.” For comprehensive guidance, consider having an agency contract drawn up professionally.

Supervision and Training by Agencies

An agency that manages professional influencer campaigns should ideally provide approved text modules and guidelines to avoid legal violations. In many cases, agencies check the planned posts before publication (if contractually agreed)—in particular for correct labeling and sensitive statements. While an agency cannot dictate every word the influencer says, as their authenticity is part of their success, they can and should at least look out for obvious legal violations.

For example, an agency discovers in the draft that the influencer wants to write “this token is guaranteed to increase value”. The agency must intervene here and explain to the influencer that such guarantees are illegal and potentially fraudulent. If it fails to do so, it is in breach of its obligations to the client.

Company as Initiator

The advertising company has ultimately placed the product on the market and benefits from the influencer’s reach. It must bear the risks of its marketing strategy. This includes selecting the right partners (influencers with a good reputation who are not known for scandals) and providing them with the necessary information. For example, a company advertising a financial product must provide the influencer with the necessary warnings or disclaimers (similar to those required in traditional advertising, e.g., “Investments involve risks of loss”).

If the company omits this and the influencer blindly promotes the product, the company may be liable for organizational negligence—it has not fulfilled its duty of care when designing the campaign.

Instructions and Liability

Companies should issue clear instructions in their contracts with influencers or agencies, in particular regarding: Labeling requirements, laws to be complied with (UWG, HWG, etc.), approval reservations for content, and style guidelines if applicable. If such instructions are ignored and a violation occurs, the company is still liable externally (liability for success under the UWG), but can sue the influencer or agency internally.

It’s important to know: Even if the company has done everything imaginable (good selection, training, testing) and the influencer nevertheless omits the labeling, for example, on their own authority, the company remains liable externally for injunctive relief. This is genuine strict liability—regardless of fault. Companies can therefore only be advised to additionally agree a contractual penalty clause or exemption from liability with the influencer to at least receive compensation from the influencer if the worst comes to the worst.

Agency Liability in the Internal Relationship

If a mishap occurs—for example, the campaign is canceled due to a violation of the law or the company has to issue a cease-and-desist declaration and pay legal fees—the question of recourse arises. If an agency was involved, the company will check whether the agency has breached its obligations (e.g., poor advice, failure to recognize obvious problems).

As a rule, agency contracts also have liability provisions. Agencies often try to limit their liability (e.g., to intent and gross negligence or to a liability sum). Nevertheless, in the event of gross errors, an agency may be liable to pay compensation to the client. This is why many agencies have professional liability insurance that covers such errors in campaign consulting.

In short, all parties involved—influencer, agency, client—share responsibility. Ideally, they should work as a team to avoid legal pitfalls instead of pointing fingers at each other later. The best strategy is to make clear agreements in advance about what is and is not permitted.

Contractual Protection and Indemnification for Product Recommendations

A decisive means of managing liability risks is the contractual structure of the influencer cooperation. The contract for product recommendations—i.e., the influencer agreement between the company (or agency) and the influencer—should explicitly regulate liability issues. Both sides can protect themselves with smart clauses:

Indemnification in Favor of the Company

Many companies insist that the influencer indemnifies them if the influencer violates labeling requirements or other laws. Background: As explained above, the company is externally liable even though the influencer publishes the post. To avoid being stuck with the costs, this is often stipulated in the contract: If the influencer violates the UWG, they indemnify the company against all resulting third-party claims.

This means that if, for example, a competitor sues the company for injunctive relief, the influencer may have to bear the costs (legal fees, contractual penalties, etc.). Some companies also demand indemnification in the event that the influencer infringes copyrights (e.g., uses unauthorized music in the video) or otherwise acts unlawfully. Influencers should be aware that they often assume extensive liability in such contracts—and also cover this in terms of insurance (see insurance section).

Exemptions from Liability in Favor of the Influencer

Influencers also have interests worthy of protection. They advertise third-party products, the nature of which they cannot fully control. It therefore makes sense to agree an indemnification in favor of the influencer in the contract in the event that third parties make claims due to product characteristics. For example: The manufacturer assures that its product fulfills all legal requirements and does not infringe any third-party rights, and indemnifies the influencer against claims if this is not true after all.

Consider this example: An influencer advertises a dietary supplement. It later turns out to contain a prohibited ingredient that is objected to by the authorities. Customers demand their money back and compensation from the influencer. With a contractual indemnity, the influencer could pass these claims on to the manufacturer. Without an indemnity, they may be left out in the cold. Therefore, every influencer should make sure that the company at least assures that the product is legal and not a source of danger—and ideally include a clause in the contract that the company indemnifies the influencer in the event of false statements or product defects.

Limitations of Liability

Both parties will endeavor to limit their overall liability. Influencers are usually sole traders with limited financial strength—they should not be liable for astronomical sums. Contractual penalties for certain breaches are often capped (e.g., “€5,000 contractual penalty for each unlabeled post”). Companies, on the other hand, will want to exclude their liability for indirect damage caused by the influencer (e.g., if a shitstorm breaks out, this is usually not compensable damage).

A fair balance of interests is required here. However, blanket clauses such as “all liability of the company is excluded” often do not stand up in law, especially if one party acts with gross negligence or intent.

Specific Clauses on Labeling & Obligation to Check

To prevent disputes from arising in the first place, contracts should contain precise specifications. For example, the contract can state: “The influencer undertakes to clearly mark each publication within the scope of the cooperation with ‘#Advertising’ at the beginning.” or “The company is entitled to check drafts of the posts in advance for legal conformity (labeling, competition violations) and to demand corrections.” Such provisions create clarity. Ideally, a short guideline on what is permissible should be attached to the contract. This way, both sides have set out in writing what is important.

Contractual Penalty for Violations

The contractual penalty clause is a sharp sword. Companies, in particular, like to use these: for example, “In the event of a breach of the advertising labeling obligation, the influencer shall pay a contractual penalty of X euros.” This is intended to motivate the influencer to comply strictly. Influencers should ensure that contractual penalties are proportionate. A penalty that is too high could be invalid (Section 307 of the German Civil Code (BGB) if it is of a general terms and conditions nature).

Conversely, the influencer can also demand that a penalty is agreed if the client incites them to break the law—for example: “If the client expressly instructs the influencer not to label a post as advertising contrary to the legal obligation, the client shall forfeit a contractual penalty…” Such clauses are rare, but conceivable to protect the influencer against questionable practices.

No Complete Shifting of Liability Possible

It is important to understand that contractual indemnities or exclusions of liability always only apply internally. Everyone remains responsible for their actions towards external third parties (consumers, competitors, authorities). A company cannot eliminate its own statutory liability by contract—Section 8 (2) UWG, for example, remains mandatory.

This means that even if the influencer contractually promises the company to be responsible for all consequences, this does not release the company from, for example, a court injunction. The indemnification only takes effect afterwards: The company can take recourse against the influencer. Similarly, a contractual exclusion of liability does not protect the influencer from being sued directly by an injured party—but they would then have a claim against the manufacturer to indemnify them. These clauses are therefore “invisible” to outsiders, but extremely important for the financial distribution of risks between the contracting parties.

Practical tip: Especially for larger deals, it is worth having the influencer contract legally reviewed to achieve balanced liability regulations. Standard model contracts often do not cover all scenarios, especially novel risks (e.g., advertising of financial products by lifestyle influencers—this is where financial market law and influencer law suddenly meet, which requires special clauses). Transparency and fairness in the contract ultimately benefit both sides: they avoid lengthy disputes about who will pay for damage X in the event of an emergency.

Influencer’s Duty to Check: Due Diligence for Sponsors and Products

In view of the liability risks described above, the question arises as to which due diligence obligations influencers themselves must meet before entering into a cooperation or advertising a product. Legally, there is no comprehensive “Influencer Duty of Care Act”, but guidelines can be derived from various regulations and general life experience:

Checking the Advertising Partner (Sponsoring Company)

An influencer should find out about the potential sponsor before signing an advertising contract. Especially if an unknown company entices you with an extremely lucrative offer (“We’ll pay you €20,000 for three Instagram posts about our new crypto token”), caution is advised. A simple background check—google the company name, check the commercial register, look for other people’s experiences—can reveal a lot.

Are there any warnings from the consumer advice center or negative press? Is the company perhaps based in an offshore tax haven or has the company only been in existence for a few weeks? Such indications should ring alarm bells. Influencers are not legally obliged to commission a credit agency, but in their own interest, they should not enter into a deal with completely dubious figures. If they do, and the partner turns out to be a fraudster, it could be argued in liability proceedings that the influencer acted with gross negligence by failing to carry out basic checks. This is a critical step for legally compliant influencer marketing.

Testing the Product or Service

It is just as important to take a critical look at what is being advertised. Ideally, the influencer should test the product themselves, if possible, or at least have it explained to them in detail. Reputable companies provide samples or train the influencer on technical features. If an influencer is promoting a diet powder, they should look at the list of ingredients and check (or have someone else check) whether it might contain illegal substances. For financial apps, they should receive basic information about how they work.

An influencer doesn’t have to be a chemist or financial analyst—but common sense is required. Does the product promise anything unusual? Are there any independent reviews? With health products in particular, it is advisable to read up on whether the claims are scientifically plausible, for example. If in doubt, you could ask a nutrition expert or doctor before advertising a product for ingestion. This type of due diligence not only serves to provide legal protection but also to maintain your own credibility.

Obtaining Information from the Client

The influencer should obtain written assurances from the advertising company that the product is legal. For example: “The company assures that product X is marketable in Germany and has all the necessary approvals.” or “The company confirms that the information provided is technically correct and not misleading according to the current state of scientific knowledge.” Such assurances could be included in the contract.

If it turns out later that something was wrong, the influencer at least has a starting point for a liability claim against the client for breach of pre-contractual obligations or warranty. Without such information, you are entering a gray area.

Ongoing Monitoring During the Campaign

The obligation to check does not end when the contract is concluded. Influencers should be vigilant during an ongoing campaign. If negative user reports emerge (e.g., followers report: “I tried the investment and my money is gone!”), the influencer should take this seriously and confront the sponsor or, if necessary, terminate the cooperation before more damage is done.

Continuing to advertise blindly even though there are indications of problems could be interpreted as negligent or even conditionally intentional.

Special Care for Sensitive Industries

Not all products are the same. There are areas that are traditionally more strictly regulated, such as financial products, health/pharmaceuticals, gambling, and insurance. Influencers entering such areas should be aware of the increased obligations. For example, in Germany, financial investment brokerage generally requires a license in accordance with Section 34f GewO if it is carried out commercially. An influencer who actively advises the purchase of certain financial investments could, under certain circumstances, slip into providing advice that requires a license. Or advertising for shares and tokens can trigger prospectus obligations. For these areas, understanding T&Cs, regulation & compliance in blockchain and other digital services is crucial.

Not all influencers need to know these legal intricacies off the cuff, but they should at least be prudent enough to consult a specialist lawyer or expert about such products. Large influencers now often have advisors in the background—smaller ones should at least clarify the legal boundaries with the client.

In short: Influencers should see themselves as responsible entrepreneurs. This includes not accepting assignments without reflection, but rather putting them through their paces to check whether the product and partner are kosher. Ultimately, this also protects against image damage: the public and followers are unlikely to forgive an influencer if they become part of an obvious scam. In this case, it doesn’t help to say “I didn’t know anything”—in case of doubt, they will say that they should have known. These soft factors often have a greater impact than any legal liability.

Insurance Cover: Professional Liability for Influencers and Agencies

In view of possible legal disputes, it is advisable for influencers and agencies to take out suitable insurance. In particular, professional liability insurance (often also referred to as media liability insurance), which covers the typical risks of online activities, should be considered.

Scope of Cover of an Influencer Professional Liability Insurance

Specialized insurers offer policies that are explicitly tailored to influencers, bloggers, and content creators. In the event of a claim, these insurance policies cover the costs of legal disputes and pay compensation if the claim is justified. Important areas covered include, for example:

Warning letters and injunctive relief due to competition law infringements (e.g., surreptitious advertising, false advertising claims). The insurance company checks whether the warning is justified and bears the legal and court fees for the defense. If the influencer ultimately has to submit a cease-and-desist declaration and bear costs, the insurance will cover these costs as part of the cover. Some tariffs even include the costs of a contractual penalty if a cease-and-desist declaration is inadvertently breached.
Infringement of third-party rights: This includes, for example, copyright infringements (a third-party photo or piece of music was unknowingly integrated into the content), trademark issues, or violations of personal rights (e.g., unwanted images). Influencers are exposed to a similar risk here as traditional media companies—a wrong image or an ill-considered statement can result in expensive lawsuits. In such cases, media liability insurance covers compensation or settlement sums and legal costs. The proper handling of labeling and copyright status for images is critical.
Financial loss due to incorrect advice: If an influencer is sued for pure financial loss (e.g., a follower sues them because they lost money due to a tip), it depends very much on the conditions as to whether the insurance pays out. Some insurance policies also cover such claims as long as there is no intentional deception. Important: Intent is never insurable. So if the influencer deliberately deceives, no insurance will cover it. But in the event of negligence or if it is unclear whether the influencer was really at fault, the insurance will at least cover the defense. This is also known as passive legal protection: unjustified claims are defended against by the insurance company.
Personal injury and property damage: Less likely, but not impossible: for example, if someone is injured at an influencer event (the influencer accidentally throws a drone into the crowd, someone is injured—personal injury; or damages rented rooms during the shoot—property damage). Many professional indemnity insurance policies also include such cases so that two separate policies are not necessary.

Legal Protection Insurance

In addition or integrated, there is often corporate legal protection insurance that is specifically aimed at online law. This takes effect, for example, if the influencer wants to assert claims themselves (e.g., has to sue for a fee) or if there is a threat of criminal proceedings (e.g., accusation of tax evasion, if the surreptitious advertising issue were to become criminally relevant—currently rather theoretical, but aiding and abetting fraud would also be conceivable as a criminal accusation, in which case criminal law protection would be required). Some insurers bundle this into packages.

Insurance for Agencies

Agencies that place influencers or manage campaigns should also have public liability / financial loss liability insurance for media and advertising activities. It would step in if the agency is held liable by the client or a third party, e.g., because damage was caused by a consulting error. For example, the agency advised the client to make a certain controversial advertising statement and now the client has to pay high contractual penalties—in such a case, the agency’s pecuniary loss liability would cover the claim. The insurance industry has reacted to the increased risks and offers tailor-made policies for marketing and PR agencies in particular.

Limits of the Insurance Cover

As mentioned, intent is excluded. So if an influencer knowingly participates in fraud, no insurance company in the world will protect them from paying compensation. Certain special risks may also not be covered as standard—fines or penalties, for example, cannot usually be insured because this would be contrary to public decency (you cannot “buy your way out” of penalties from the outset).

However, some insurance companies do cover the costs of advice in fine proceedings. Contractual penalties from cease-and-desist agreements are also often excluded or can only be insured for an additional charge. Insurance policies also have cover amounts. Influencers should consider the amount of cover they want to take out. In the case of influencers with a very wide reach, potential damages (e.g., due to mass warnings or class actions) can quickly mount up, so a higher sum insured in the millions is recommended.

For smaller influencers, basic cover of €250,000, for example, may seem sufficient. It is important that the insured risks match the business model exactly. For example, if you also run your own online store, you also need product liability insurance; if you have employees, you need accident insurance, etc.

Insurance Extensions

Some modern policies also cover cyber risks (e.g., if the influencer falls victim to a hacker attack and is therefore unable to fulfill contractual obligations or data is lost) and foreign claims (important if followers from abroad make claims under local law—this can happen if you are online globally). Most German insurance policies cover EU-wide, sometimes worldwide, as long as the company is based in Germany.

The same applies to influencers, agencies, and companies: Insurance is not a substitute for compliance, but it is an essential safety net. For individuals in particular, a single legal dispute can be life-threatening—insurance creates predictability here. It is worth comparing offers (keyword “influencer insurance”), as benefits and premiums differ.

Collective Redress: EU Class Actions and US Class Actions

In the past, it was difficult for consumers in Germany to take joint action against unfair business practices—it was a far cry from the US system of class actions. However, a lot has happened recently at EU level. Here we look at the new EU Class Action Directive (EU) 2020/1828, which was implemented in the Member States from 2023/2024, and the situation in the USA as an example to provide a benchmark.

European Representative Action (Redress Action) since 2023/2024

EU Directive 2020/1828 on representative actions is intended to strengthen collective redress. Germany transposed this directive with a delay in October 2023 (Consumer Rights Enforcement Act (VDuG), also part of the so-called Consumer Complaints Directive Implementation Act (VRUG)). The centerpiece is the new redress action, a type of class action by consumer associations. Qualified consumer associations can now bring an action in their own name to obtain either an injunction or even compensation/reimbursement for a large number of consumers.

Up to now, we have only been familiar in Germany with actions for injunctions brought by associations (e.g., under the UKlaG or UWG) and the model declaratory action, which, however, only makes declarations and then everyone has to take legal action themselves. The redress action goes one step further: it enables a decision to be made in a single procedure that creates a right to performance for all affected consumers.

In relation to influencer cases, this means that if, for example, thousands of consumers have suffered financial damage as a result of a misleading advertising campaign involving influencers, a consumer association (such as the consumer advice center) could take up this case and bring it to court in a bundle. For example: A platform sells a fake crypto token “SuperCoin” and gathers investors via well-known influencers. 5,000 consumers invest €200 each, the coin crashes to zero due to fraudulent activities. Under the old law, these 5,000 people would have had to sue individually—which hardly anyone does with a €200 loss. With the new collective action, the Federal Association of Consumer Organizations, for example, could bring an action for redress against the operators of the platform (and possibly against those jointly responsible) in order to claim the €200 per person. The decision would then benefit all injured parties who have joined the proceedings.

This increases the pressure on influencers and companies: the risk of being held liable for mass damage increases. Where previously the dispersed structure of consumers was a protection against lawsuits, an organized body can now take the reins. Important: The representative action is directed against companies that have violated consumer rights. Influencers themselves are usually also legally considered companies (in the sense of the consumer lawsuit, as they are business providers). In principle, they could therefore also be defendants in a representative action if their behavior violates consumer protection regulations and affects many consumers.

It would be conceivable, for example, for an association to bring an action for injunctive relief against an influencer who systematically engages in surreptitious advertising, or for damages if many consumers were demonstrably financially harmed by a false recommendation. However, it is more realistic for the associations to primarily target product providers—where liability is clearer and the financial resources are greater.

Germany has even “exceeded” the EU requirements: The redress action in this country extends not only to breaches of EU consumer protection regulations, but to all civil law claims by consumers against companies (with a few exceptions). This means that even tortious claims (e.g., from Section 823 BGB) can be included in a representative action. This broad structure was deliberately chosen to also include mass cases such as the diesel scandal or data leak damage under the action. For influencer infringements, this means that if the influencer’s conduct gives rise to tortious liability towards a large number of consumers (e.g., intentional immoral damage on a large scale), an association could theoretically assert a collective claim. In practice, it remains to be seen whether associations will sue influencers directly or rather the companies behind them.

Excursus: Class Actions in the USA

Class actions have long been established in the United States. In cases of consumer fraud or misleading advertising, it is common for law firms to sue on behalf of all injured parties—often including celebrities or influencers who were involved in the advertising. A well-known example is the Fyre Festival affair (2017): Several celebrity influencers (e.g., Kendall Jenner, who promoted the luxury festival) were co-sued in civil class action lawsuits brought by bruised ticket buyers. Kendall Jenner later agreed to a settlement and paid around 90,000 US dollars because she was accused of not making it clear that her advertising post was paid for and thus misleading fans. Even though the main blame lay with the organizer, this shows that US lawyers are not afraid to sue influencers for contributing to fraud.

Something similar was seen in the numerous crypto scandals in the US: when the crypto token EthereumMax collapsed, investors filed a class action naming Kim Kardashian, Floyd Mayweather Jr. and other celebrities as defendants because they hyped the token with posts (without disclosing that they had been paid). Although a court in California initially dismissed this lawsuit as the judges had doubts as to whether the celebrities should bear responsibility for the losses, the influencers still had to deal with this publicly. Kim Kardashian also paid a fine of USD 1.26 million to the Securities and Exchange Commission (SEC) for violating disclosure obligations when advertising the security token.

In the FTX case (crypto exchange fraud 2022), famous advertising ambassadors such as a sports star and actors were also named in class action lawsuits, as they would have strengthened customers’ trust in the platform. Although it is still unclear whether they are liable, their participation in the lawsuit already means enormous costs and reputational damage.

The difference to the German/European system lies in particular in the way the lawsuit is conducted: in the USA, private law firms often file a class action on behalf of a few exemplary plaintiffs and then recruit other injured parties. The amounts of damages can be very high due to punitive damages and jury verdicts. Influencers in the USA are therefore treading on mined ground as soon as they take part in questionable advertising campaigns—the financial liability can be many times higher than the fee paid. The risk of legal costs is often borne by the celebrities and companies being sued, while the plaintiffs’ lawyers work on a contingency basis.

Significance for Germany in 2025

With the EU class action, we are moving a step closer to a class action culture—but it will remain bundled in the hands of associations (no Wild West lawsuits by random law firms). This may protect influencers from excessive lawsuits, but legitimate cases will be easier to bring to court in future. Consumer protection organizations in particular are becoming increasingly interested in digital markets: It is conceivable that, for example, a consumer association could bring a redress action if a major investment scandal involving social media advertising occurs. Both the provider and any promoters with knowledge could then be held responsible.

Influencers, agencies, and companies should follow this development closely. The era of “practical immunity” for widespread small-scale damage is coming to an end. Collective claims will be the next big topic in consumer law—and influencer marketing will be affected as soon as measurable harm is caused to many.

Conclusion and Recommendations for Influencers, Agencies, and Companies

The analysis has shown: Influencer marketing is not a legal vacuum. There are numerous obligations and potential liability traps—from civil liability for damages to competition law (UWG) and media law requirements. Influencers, agencies, and advertising companies must take these seriously to avoid expensive lawsuits, fines, and damage to their image. The book concludes with specific recommendations for practical action:

For Influencers:

Ensure compliance with advertising law: Clearly label every cooperation as advertising. It is best to use clear terms such as “advertising” or “advertisement” clearly visible at the beginning of a post. Avoid misleading tags. Follow the guidelines of the media authorities. Surreptitious advertising can result in warnings and fines—it’s not worth the risk.
Advertise truthfully and carefully: Only make statements about a product that you believe to be true and that have been confirmed by the client or independent bodies. Exaggerations or even false promises should be taboo. If in doubt, ask the advertising partner for proof (studies, certificates). Use disclaimers, especially in regulated areas (health, finance): point out risks, for example (“Note: cryptocurrencies are subject to strong price fluctuations, capital loss possible”). Although this does not completely protect you from legal liability, it shows that you are acting responsibly.
Due diligence for offers: Check sponsors and products before you commit to a contract. Place particular emphasis on background research for new or unknown companies. Ask yourself: Would I recommend the product to my friends/family? If not, keep your hands off it—short-term revenue does not justify a loss of trust from your community or legal problems. Also be vigilant during the campaign: if there are any negative signs, raise them with the partner. If necessary, break off a cooperation before you become the figurehead of a scandal.
Negotiate the contract well: In the cooperation agreement, make sure that the partner indemnifies you against certain risks (e.g., product risks, legal defects). Pay attention to what happens if you receive a warning—do you have to pay alone or will the partner support you? Understand the contractual penalties and obligations that are imposed on you. If something seems unclear or one-sided, don’t be afraid to renegotiate or seek legal advice. A solid contract is also in your interest.
Insure yourself: Consider taking out professional indemnity insurance for influencers. It helps to cover the financial risk of warnings, claims for damages, etc. Many successful influencers now have such a policy, just like other self-employed people. Check which risks are covered (competition infringements, copyrights, etc.). The premium is usually well invested if you consider the potential litigation costs.
Document agreements: Record all important agreements with the sponsor in writing (briefing, approvals, special instructions). This way you can prove that you have adhered to the specifications in case of doubt. Keep proof of purchase if you buy and present products yourself—this way you can prove that no consideration was paid (to refute a labeling requirement if necessary). Also, ensure legally compliant archiving of emails for documentation purposes.

For Agencies:

Knowledge of the legal situation: Make sure that your team is familiar with the current legal framework for influencer marketing—in particular the UWG and the Interstate Media Treaty. If necessary, organize training for employees and also for your influencer talents so that everyone is aware of how, e.g., labeling must be done correctly. Given the evolving landscape, staying informed about the Digital Services Act (DSA) is also crucial.
Contract with the client: Contracts with advertising companies should clearly state what your responsibilities are and where your liability ends. Do not allow yourself to be held liable for things that are beyond your control. At the same time, give a guarantee that you will instruct your influencers to comply with all laws. Agree who will pay for warning costs if something does go wrong. Clients often demand that the agency is liable internally—pay attention to limitations here and insure yourself accordingly.
Contract with influencers: If you as an agency sign influencers under contract or conclude campaign contracts on behalf of clients, ensure that influencers have clear obligations: in particular compliance clauses (UWG, platform rules, etc.) and an obligation to cooperate (e.g., timely submission of posts for review). At the same time, treat your talents fairly—inform them about risks, help them with legal issues, and provide support in the event of an emergency (e.g., by organizing a lawyer in the event of a warning). This also includes understanding the implications of AI editing in campaigns.
Content control and advice: Develop internal checklists for each post: Is the labeling in there? Are no banned words/promises used? Does the post also comply with Instagram/YouTube guidelines (to avoid bans)? Offer to proofread each post in advance without destroying the creative handwriting. A quick screening from a legal perspective is often enough. Perhaps set up a standard process for a lawyer or trained employee to look over it before publication, especially in risky industries.
Beware of dubious clients: As an agency, you should also check potential clients. An unknown company that throws money around and pushes for quick influencer campaigns could be dubious. It’s better to turn down an order than to be dragged into a scam later on. Your reputation as an agency depends on delivering credible and safe campaigns.
Insurance cover: Take out appropriate agency liability insurance. One mistake can happen—for example, you forget to give the influencer an important tip—and a claim can be made. Insurance helps to cushion such blunders financially. Make sure that consulting errors and breaches of competition law are also covered (this is usually the case with media liability insurance).

For Advertising Companies:

Choose reputable partners and influencers: Take a look at who you are working with. Does the influencer fit the brand and have they attracted positive attention so far (instead of scandals)? If necessary, check past postings—anyone who has attracted negative attention in the past due to surreptitious advertising or clickbait could pose a risk. Focus on influencers with credibility and a sense of responsibility. This protects your brand and reduces the likelihood of legal violations.
Clear briefings and contracts: Specify in detail in the cooperation agreement what the influencer must and must not do. Insist on labeling, truthful representation, and compliance with legal requirements (UWG, special laws depending on the product). Incorporate approval loops, at least on a random basis. It is better for a post to be delayed for a day due to checking than for it to go live unthinkingly and harbor the potential for a warning. Also: Agree an indemnity against liability so that the influencer reimburses you for any expenses incurred as a result of their misconduct (e.g., legal fees for warning letters). This creates discipline and protects you financially.
Monitoring the campaign: Don’t blindly rely on everything running. Monitor the publications. If an influencer does not adhere to agreements (e.g., forgets #advertising), intervene immediately and demand correction. Document violations and, if necessary, warn the influencer internally—in case of doubt, you can show that you have made an effort to ensure compliance (which can be mitigating, e.g., vis-à-vis an authority).
Crisis management: Have a plan in case something does go wrong. If, for example, public criticism arises or a warning letter arrives, communicate quickly with the agency and the influencer. Remove problematic content and cooperate with authorities or associations. An open approach can prevent worse things from happening. And: don’t reflexively put all the blame on the influencer in an emergency—this may be in your interest legally, but it could be perceived as unclean publicly. It’s better to take responsibility together and limit the damage.
Obtain legal advice: Especially for sensitive products (finance, health, gambling), have your advertising measures checked in advance by lawyers or compliance experts. This may cost a little, but it will save you expensive legal consequences. In regulated industries, every advertising text should go through a specialist department anyway (e.g., financial compliance checks whether an influencer post meets the legal requirements for investment advertising).
Keep an eye on class actions: Consumer advocates can target your marketing with the new class action lawsuit. Therefore, be careful not to violate consumer rights. This also includes data protection (influencer competitions often collect data; GDPR violations could also be the subject of class action lawsuits). Be aware that collective claims can be expensive—it is better to invest preventively in legally compliant design than in mass compensation afterward.

Fazit

The liability of influencers and agencies for advertised products is a complex issue that is becoming increasingly relevant with the professionalization of influencer marketing. Influencers are on thin legal ice if they ignore the legal rules. Agencies and companies must be aware of their shared responsibility and must not dismiss legal issues as mere “formalities”. Anyone who advertises in social media should do so with the same care as in traditional media—because the law applies regardless of the platform.

However, if you stick to the basic rules (transparency, truth, fairness) and take contractual and insurance-related precautions, most risks can be managed. Influencer marketing can then develop its enormous potential without the courts or lawyers eating up the profits in the end. Ultimately, everyone involved—influencers, agencies, companies, and consumers—benefits from clean and honest advertising on social media.