Influencer marketing has become an important tool in digital marketing in recent years. For start-ups, it offers an effective way to build reach and address target groups. However, this form of marketing also harbors legal risks that can lead to severe penalties if not observed. This guide highlights the most important legal aspects that start-ups need to consider when designing influencer campaigns.

Legal Framework of Influencer Marketing

Influencer marketing operates at the intersection of various legal fields, including competition law, media law, and data protection law. Central standards in this area include:

The Unfair Competition Act (UWG), particularly Section 5a UWG concerning misleading by omission and Section 6 UWG on comparative advertising.
The Interstate Media Treaty (MStV), which contains regulations on the labeling of advertising in telemedia.
The General Data Protection Regulation (GDPR) regarding the processing of personal data within influencer campaigns.

A fundamental principle throughout all relevant legislation is the requirement to clearly separate advertising from editorial content and the obligation to label advertising.

Mandatory Labeling of Advertising Content

The obligation to label advertising is arguably the most critical aspect of influencer marketing. According to Section 5a (6) UWG and Section 22 (1) MStV, advertising must be clearly recognizable as such. This also applies to native advertising formats, where advertising content is designed to resemble editorial material.

In practice, specific terms have been established for labeling, which case law generally recognizes as sufficient:

“Advertisement” or “Werbung”
“Sponsored by”
For English-language posts: “Ad” or “Advertising”

It is crucial that the labeling is immediately recognizable to the average user. Hidden or ambiguous references, such as “#ad” at the end of a long text, or the use of unclear terms like “powered by,” are insufficient and can lead to legal issues.

Drafting Contracts with Influencers

The legally compliant drafting of contracts with influencers is of paramount importance for start-ups. The following essential points should be considered when establishing such agreements:

Clear definition of the services to be provided, including the type, scope, and timing of the posts.
Regulations on the correct labeling of advertising content.
Granting of usage rights for the created content, especially for further use by the startup.
Agreements on exclusivity and potential restrictions on competition.
Regulations on liability, particularly in the event of legal violations by the influencer.
Clear remuneration terms, including any performance-related components.

Additionally, it is advisable to include an obligation for the influencer to comply with all relevant legal regulations. Providing them with specific requirements for labeling advertising content within the contract can further mitigate risks.

Product Placements and Surreptitious Advertising

Particular care must be taken with product placements. According to Section 8 (7) MStV, surreptitious advertising—the unmarked mention or presentation of products for advertising purposes—is strictly prohibited. Even if an influencer receives a product free of charge and mentions it in their posts, this can be considered advertising and must be appropriately labeled.

Case law has developed significant guidelines in this area. For instance, the Higher Regional Court of Frankfurt am Main ruled in a notable judgment (case no. 6 W 35/19) that an advertising label may also be required for mere links to Instagram accounts of companies if the post exhibits an advertising surplus. This emphasizes the broad interpretation of what constitutes advertising.

Data Protection Aspects in Influencer Campaigns

Influencer campaigns frequently involve the processing of personal data, whether from the influencer’s followers or participants in competitions. Strict adherence to the requirements of the GDPR is essential here. Key considerations include:

Obtaining effective consent for data processing where required by law.
Providing transparent information on data processing in accordance with Art. 13 and 14 GDPR.
Implementing robust technical and organizational measures to protect personal data.
Concluding data processing agreements with service providers if they are involved in data handling.

Practical Tips for Start-ups in Influencer Marketing

Drawing from experience in IT law, the following practical tips can help start-ups navigate influencer marketing successfully and compliantly:

Clear Guidelines: Develop explicit guidelines for your influencer cooperations that incorporate all legal requirements.
Employee Training: Ensure that all involved employees are thoroughly familiar with the legal fundamentals of influencer marketing.
Contract Management: Implement systematic contract management for all influencer cooperations to maintain oversight and compliance.
Monitoring: Continuously monitor the implementation of your campaigns to verify that all legal requirements are being met.
Documentation: Maintain careful documentation of all influencer activities. This provides essential evidence in the event of potential disputes or investigations.
Legal Advice: Seek legal advice at an early stage for complex campaigns or when exploring new advertising formats to proactively address potential issues.

The legally compliant design of influencer marketing campaigns requires diligent planning and execution. However, start-ups that meticulously observe the legal framework can significantly benefit from this effective form of marketing. This approach helps to avoid unnecessary legal risks and can also serve as a mark of quality towards influencers and target audiences alike.

Given the complexity and continuous evolution of case law in this area, it is highly advisable for start-ups to stay informed about the latest developments and to seek expert legal support whenever necessary.

Fazit

Ensuring legal compliance in influencer marketing is crucial for start-ups to avoid significant penalties and build trust. By understanding relevant laws, meticulously drafting contracts, and adhering to strict data protection standards, businesses can harness the power of influencers effectively and safely. Proactive legal guidance remains invaluable in this dynamic field.