The ongoing expansion of influencer marketing has not only led to a significant structural development in this economic sector, but also to a growing number of legal disputes between the parties involved. As part of one of the proceedings I fought for, a groundbreaking ruling was obtained from the Higher Regional Court of Karlsruhe (case no. 4 U 22/24), which represents a significant precedent.
The ruling confirms that influencer agencies may not act exclusively as intermediaries, but may also provide comprehensive consulting and support services. These additional services go beyond the mere mediation of contacts and justify the contractually agreed commission regulation. The decision underlines that such hybrid service models are to be regarded as an independent service in the light of contractual freedom – in particular taking into account the principles of the German Civil Code. This not only strengthens the agencies’ entitlement to commission in the long term, but also makes a significant contribution to creating more legal certainty in the field of influencer marketing.
The judgment clarifies that the legal assessment of contracts in influencer marketing requires a differentiated approach. It becomes clear that the contractually fixed consulting services, which are provided in close connection with the brokerage activity, are not subject to the restrictions of a classic brokerage contract. This insight makes it possible to precisely design contractual provisions in this sector while at the same time taking into account the economic interests of the agencies.
Overall, the decision of the Higher Regional Court of Karlsruhe makes an important contribution to the forward-looking interpretation of contractual relationships in influencer marketing. It proves that a carefully drafted contract not only meets the individual requirements of the parties, but also serves as a reliable basis for the enforcement of commission claims. As the responsible legal counsel in these proceedings, I was able to help consolidate the legal position of the agency concerned and thus provide an important impetus for the entire industry.
I. Facts of the case and contractual basis
In these proceedings, the subject matter of the dispute was the question of whether an influencer agency, which also acts as a strategic consultant, is entitled to a commission of 20% of the agreed cooperation amount. The underlying contract stipulated that the agency would procure an influencer for an advertising campaign and also provide ongoing advice regarding negotiations and campaign implementation.
The contractual agreements were based on the principles of general contract law, in particular the provisions of the German Civil Code (BGB). A central issue of dispute was whether the agency’s activities should be classified as a pure brokerage service – analogous to the classic brokerage contract pursuant to Section 654 BGB – or whether the additional consulting services provided constitute an independent service that goes beyond the provisions of brokerage law.
The company that used the services claimed that the agreed commission was unusual and possibly immoral. In addition, there was an allegation of unlawful double representation, as the agency had allegedly acted for both the company and the influencer to be placed.
II. Legal assessment by the Regional Court of Offenburg
In its ruling, the Regional Court of Offenburg took a close look at the contractual agreements and the scope of services provided by the agency. It focused on the question of whether the services provided by the influencer agency went beyond simple placement activities.
The court found that the contractually agreed consulting and support services do not fall under the narrow concept of a brokerage contract pursuant to Section 654 BGB. Rather, a hybrid service model is pursued here, in which strategic consulting, negotiation management and operational support of the campaign are included in the scope of services. The special structure of influencer management requires comprehensive support that goes beyond the pure brokerage aspect.
Furthermore, the level of commission was examined in detail. Taking into account standard industry practice and the particular complexity of the services provided, the court came to the conclusion that a commission of 20% was neither excessive nor immoral. This assessment was based on the principle of contractual freedom, which must also be observed with regard to the agreement of commission claims.
Iii. The decision of the Karlsruhe Higher Regional Court
The company appealed against the ruling of the Offenburg Regional Court. In the appeal proceedings, the Karlsruhe Higher Regional Court confirmed the decision of the lower court in its entirety. The main considerations and legal assessment of the first-instance ruling were taken up and strengthened.
1. expansion of service horizons
In its reasoning, the Higher Regional Court emphasized that the activities of an influencer agency are not to be classified as classic brokerage activities within the meaning of Section 654 BGB. The legal assessment was differentiated by clarifying that in addition to pure brokerage, strategic and operational consulting services are also provided. This combination requires a differentiated view, which justifies the contractually agreed commission claim even in the case of multiple representation.
2. consideration of the contractual self-commitment
Another key aspect was the contractual commitment of both parties. The ruling emphasizes that in the case of clearly and unambiguously defined contractual agreements, as in the present case, the agency’s performance is to be remunerated in full. This corresponds to the principles of contract law, according to which a contractually agreed service is generally owed in full.
3. differentiation from brokerage law
The legal opinion that influencer management does not fall under the strict regulatory framework of brokerage law was confirmed once again. A mere brokerage activity differs significantly from a hybrid service model, which focuses on comprehensive consulting services in addition to brokerage. This differentiation is of considerable importance, as it expands the scope of action of agencies and legally safeguards the right to commission.
IV. Legal classification and industry-relevant implications
1. contractual implications
The ruling underlines the importance of clear and precise contractual provisions in influencer marketing. In light of the case law, an effective contract – which includes all essential service components – serves as the basis for the enforcement of commission claims. The agreement of a commission of 20% is therefore to be understood as an expression of the freely agreed consideration. It should be noted here that German contract law generally preserves freedom of contract and only restricts it if there are statutory prohibitions or immorality (in accordance with Section 138 BGB).
2. importance for influencers and agencies
The decision of the Higher Regional Court of Karlsruhe has far-reaching consequences for the entire industry. In addition to strengthening the position of agencies, the case law will lead to increased scrutiny of the precise structure of service contracts in influencer marketing. In future, it will be crucial to ensure that the services offered – in particular strategic advice and operational support – are set out in sufficient detail in the contract. Such contractual clarification not only creates legal certainty, but also represents an important competitive advantage.
The standard industry practice of understanding influencer marketing as a hybrid service is clearly underpinned by this ruling. The finding that agencies do not act exclusively as intermediaries, but also as comprehensive advisors, enables a clear distinction to be made from traditional brokerage contracts. This is particularly important with regard to the future drafting of contracts and the legal assessment of similar disputes.
3. outlook on legal developments in influencer marketing
Although the ruling by the Higher Regional Court of Karlsruhe on September 9, 2020 does not represent a turning point, it does confirm a legal opinion that was already being considered in the area of influencer marketing. It provides clearer and more explicit confirmation of the previous trend in case law. With its ruling, the Higher Regional Court of Karlsruhe has reaffirmed the position that influencers must label their posts on Instagram as advertising if they use so-called tap tags that lead to the pages of other companies. This decision is in line with previous rulings and underlines the growing trend of demanding transparency in influencer marketing. Although the decision does not represent a fundamental change in the legal situation, it provides a more precise and authoritative interpretation of existing standards. The Higher Regional Court of Karlsruhe has made it clear that posts by influencers are to be regarded as commercial acts, that the commercial purpose of such posts is not always immediately apparent from the circumstances and that a labeling obligation exists even if no direct consideration has been received for the post. This decision provides influencers, companies and agencies with clearer guidance for their marketing activities. It underlines the need to clearly label advertising content as such in order to avoid violations of the Unfair Competition Act (UWG). Overall, the ruling by the Higher Regional Court of Karlsruhe confirms the emerging legal opinion and helps to increase legal certainty in the dynamic field of influencer marketing.
V. Detailed analysis of the legal argumentation
1. examination of the scope of services
The legal assessment of the scope of services provided by an influencer agency requires a differentiated view of the services actually provided. In this case, the agency offered a service package that went far beyond simple mediation. In addition to arranging contacts, the company received continuous support in conducting negotiations and implementing the campaign.
The clear contractual stipulation of these services forms the basis for the enforceability of the commission claim. Such an arrangement is in line with the view that contractual agreements on the scope of service provision must be assessed in their entirety – even if individual services are provided as part of an overall package. It follows that a blanket reduction of the commission claim based on the assumption of pure brokerage activity is not justified.
2. brokerage law aspects and their delimitation
The criticism of the agency’s activities was based, among other things, on the assumption that any double representation could violate the provisions of brokerage law. Section 654 of the German Civil Code (BGB), which regulates the classic brokerage contract, is decisive here. However, case law is increasingly differentiating between pure brokerage services and hybrid services that contain advisory and support elements.
The Higher Regional Court of Karlsruhe confirmed that the agency’s activities should not be classified as “classic brokerage”, as the contractually agreed consultancy services have the character of an independent service. Such a differentiation is understandable in the light of contractual freedom and case law, as it takes into account the complexity of modern service models on the one hand and ensures adequate protection of the legitimate claims of service providers on the other.
3. immorality and appropriateness of the commission
Another point of discussion in the proceedings was the question of the immorality of the agreed commission amount. Using the standards of Section 138 of the German Civil Code (BGB), the agreement of a commission of 20% was subjected to intensive scrutiny. The court came to the conclusion that this remuneration was reasonable in view of the scope of the services provided and standard industry practice.
This assessment is of particular relevance as it underlines the contractual freedom and sets the standard for future contractual arrangements in influencer marketing. The case law makes it clear that the contractually freely agreed remuneration is valid even if an attempt is subsequently made to contest it on the grounds of immorality – provided that the scope of services was documented and contractually fixed accordingly.
4. requirements for the fulfillment of the service contract
In its ruling, the Higher Regional Court of Karlsruhe clarified that the poor performance of a service contract does not affect the remuneration claim of the party obliged to perform the service. This follows from the legal assessment that the law on service contracts does not provide for any warranty rules. Accordingly, a claim to the defense of non-performance of the contract pursuant to Section 320 (1) BGB only arises if the service provided by the obligated party is completely unusable. The Federal Court of Justice (BGH) has ruled that a service is to be regarded as unusable if it is worthless for the party entitled to the service and the conduct of the party obliged to provide the service is tantamount to a refusal to perform (BGH, judgment of February 23, 2006 – III ZR 167/05).
For influencer agencies, this case law confirms their contractual position. Even if there are deviations in performance, the claim to the agreed remuneration remains in place as long as the service is not completely worthless. This creates planning security and strengthens the enforceability of commission claims, even in complex contractual relationships.
The ruling makes it clear that agencies that provide hybrid services – consisting of mediation and consulting – can rely on the basic existence of their claim to remuneration as long as the benefit provided to the client is not completely lost. This means that a blanket refusal of remuneration by the client is generally not justified, which is particularly important in influencer marketing.
VI Industry relevance and strategic implications for companies
1. legal certainty as the foundation for successful cooperation
For influencer agencies, a clear and legally compliant contract is essential in order to be able to effectively enforce their commission claims. The activities of an agency go far beyond mere placement services – they include strategic consulting, conducting negotiations, campaign management and ongoing support for companies. These comprehensive services must be clearly defined in the contract in order to avoid later discussions about the scope of services.
A frequent problem is that companies subsequently try to disengage from agreed remuneration, either by claiming that it was purely brokerage work or by disputing the amount of commission. A detailed contract structure protects agencies from such objections and ensures that the actual scope of the services provided is also legally recognized. It is crucial that the contract makes a clear distinction between consultancy and brokerage services and that all remuneration components are regulated transparently.
2. contractual clarity as protection against false legal objections
A frequent risk for influencer agencies is the accusation of engaging in impermissible double representation or falling under the provisions of brokerage law. Such arguments are often used to question the obligation to pay remuneration. The distinction between a brokerage agreement and a hybrid service agreement is therefore of central importance.
Agencies that do not focus exclusively on brokerage but offer comprehensive support are not acting as traditional brokers. Contracts that focus on advisory and management services prevent the company from being able to invoke the provisions of brokerage law. In addition, the contract should clearly state that the agency acts as an independent service provider and does not represent the interests of a single party.
It is equally important to safeguard against disputes about the amount of commission. It is not enough to agree on a certain level of remuneration – it should also be objectively justified. A reference to what is customary in the industry or a clear allocation of the remuneration to individual partial services prevents clients from subsequently claiming that the remuneration is excessive or inappropriate.
3. strategic advantages through legally sound contract models
For agencies that want to work successfully in the long term, a forward-looking contract strategy is crucial. A professionally drafted contract not only protects against disputes, but also improves your own market position. Companies that choose an agency with a solid legal structure know that they are working with a reliable partner.
Legal certainty is therefore not only a safeguard against bad debts, but also a quality feature for the industry. An agency that draws up its contracts precisely and protects itself against common objections creates trust and prevents customers from subsequently trying to avoid obligations. Professional contract drafting is therefore not only legally necessary, but also an essential component of an agency’s economic stability.
A well-thought-out contract model should include aspects such as bonus payments for successful campaigns, billing modalities and regulations on contract termination in addition to the classic remuneration regulations. The clearer the individual services are described, the more difficult it is for the client to subsequently withdraw from the agreed remuneration obligation.
4 Conclusion: Precise contract drafting as a success factor
For influencer agencies, the legal protection of their services is not just a protective mechanism, but a key success factor. Contracts that are unclear or incompletely worded invite discussion or questioning of remuneration. On the other hand, those who pursue a transparent and strategically drafted contract structure not only secure their financial claims, but also strengthen their market position as a professional service provider.
The challenge for agencies is to classify their hybrid services precisely in legal terms and to regulate them contractually in such a way that there is no room for interpretation. Those who seek professional advice at an early stage and rely on a solid contractual structure not only avoid disputes, but also secure long-term commercial success and a strong position in the market.
VII Advice and further legal information
The ruling by the Higher Regional Court of Karlsruhe impressively confirms that professional and forward-looking contract drafting is essential in influencer marketing. Hybrid service models in particular, which include both agency and consultancy services, require precise legal drafting in order to enforce commission claims with legal certainty and effectively avoid disputes. This applies in particular when agencies and management are confronted with accusations of double representation or restrictions under brokerage law.
In my consulting practice, I attach particular importance to drafting contracts in such a way that they are not only legally flawless, but also optimally protect the economic interests of my clients. The combination of strategic vision, comprehensive industry knowledge and many years of experience in IT law, contract law, corporate law and media law enables me to develop individually tailored solutions that meet the requirements of the influencer market.
The decisive factor here is not only the contractual definition of commission claims, but also the clear definition of performance obligations. Detailed and unambiguous wording is the only way to avoid later discussions about the fulfillment of contractual obligations. Companies and agencies that have their contracts professionally reviewed and adapted are in a much better starting position when it comes to enforcing remuneration claims.
My advisory approach goes beyond a purely legal review: I support my clients in creating economically viable and legally unassailable contractual structures. In doing so, I take into account industry-specific risks as well as current developments in case law. In this way, I ensure that my clients are not only successful in court, but can also build stable long-term business relationships.
This judgment shows that well-drafted contracts are valid and that commission claims can be enforced even if they are subsequently called into question. Anyone working in this field should therefore seek competent legal advice at an early stage, not only to safeguard their claims, but also to avoid legal stumbling blocks from the outset.
VIII. Conclusion
The ruling by the Higher Regional Court of Karlsruhe (case no. 4 U 22/24) sets an important benchmark for the legal classification of commission claims in influencer marketing. The court’s confirmation of the remuneration claims of an influencer agency makes it clear that comprehensive services – consisting of brokerage and ongoing advice – can be effectively contractually agreed and enforced. The decision creates a clear distinction between traditional brokerage services and hybrid service contracts, which strengthens the position of professional agencies.
Of particular relevance is the court’s finding that a service contract is only deemed not to have been fulfilled if the services provided are completely unusable. This interpretation protects agencies from clients subsequently unilaterally withdrawing from agreed remuneration. For companies, this means that contractually fixed commission claims are valid and cannot be contested without further ado, even if individual elements of the service were not provided completely satisfactorily from the client’s point of view.
The decision underlines the need for a precise contractual definition of performance obligations. A legally compliant contract that describes the actual scope of services in detail creates clarity and helps to avoid subsequent disputes. Companies and agencies active in influencer marketing should therefore pay more attention to adapting their contracts in line with current case law.
From a legal perspective, the ruling shows that hybrid service models in influencer marketing have a sound legal basis. Agencies can rely on the fact that their comprehensive consulting and brokerage services are not classified as mere brokerage activities and can therefore assert their full contractual claim to remuneration. This not only strengthens the position of professional service providers, but also ensures greater planning security in the industry.
Sound legal advice is essential for sustainable and legally compliant collaboration in influencer marketing. A detailed analysis of the range of services, precise contractual documentation and consideration of relevant supreme court rulings are decisive factors in protecting the economic interests of all parties involved. This decision makes it clear that well-structured and legally sound contracts can be upheld and successfully enforced in the event of a dispute.
Overall, the ruling of the Higher Regional Court of Karlsruhe has a trend-setting significance for the entire industry beyond the specific case. The differentiated legal assessment of hybrid service contracts contributes to transparent and reliable cooperation between companies and agencies. A strategic contract design that takes into account the current developments in influencer marketing not only ensures the economic success of the parties involved in the long term, but also guarantees reliable legal protection.
