Extraordinary termination options for influencer contracts

In my practice as a lawyer for IT and media law, I encounter the challenges of the digital age on a daily basis. Particularly in the area of influencer marketing, it becomes clear time and again how important it is to draft contracts carefully. Hardly a day goes by without me being confronted with questions about notice periods, sunset clauses or early termination options. These topics concern influencers and companies alike – and for good reason. After all, in the fast-paced world of social media, working together overnight can prove problematic. This makes it all the more important to know the legal framework in detail. Two sections of the German Civil Code (BGB) play a special role here: Sections 627 and 628. They may seem inconspicuous at first glance, but in practice they have enormous explosive power. Let’s take a look together at how these regulations influence the world of influencer marketing and what pitfalls need to be considered.

Influencer contracts: More than just a handshake in the digital space

In my day-to-day work, I see time and again how underestimated the legal complexity of influencer contracts is. Many of my clients are surprised when I explain to them that we are not dealing with simple advertising deals here, but with service contracts of a higher order. The reason for this is obvious: influencers don’t just sell advertising space, they bring their own personal touch, charisma and expertise to the table. This creates a special relationship of trust between the influencer and the client – and this is precisely where Sections 627 and 628 of the German Civil Code (BGB) come into play. These sections take into account the special nature of such collaborations and grant both sides special rights. In my practice, I have learned that the careful application of these provisions can be decisive for the success and stability of influencer collaborations. It’s about creating a framework that allows flexibility but at the same time offers security. The specifics of influencer marketing must be taken into account: the fast-paced nature of the market, the importance of reputation and the often very personal nature of the collaboration. All of these factors must be taken into account when drafting the contract in order to do justice to both sides. It is a balancing act that requires legal sensitivity and for which Sections 627 and 628 of the German Civil Code (BGB) serve as a compass.

§ 627 BGB: The emergency exit in the contract labyrinth

In my work as a lawyer, I have often experienced how valuable Section 627 BGB can be – it is the emergency brake on the train of cooperation, so to speak. Imagine a top influencer suddenly posts questionable content or a company turns out to be a black sheep in the industry. In such cases, Section 627 of the German Civil Code (BGB) allows for termination without notice if the relationship of trust has been shaken. But be careful: this emergency brake should not be pulled lightly. I remember a case in which a company wanted to terminate the contract shortly before the launch of a major campaign because the influencer was not delivering the expected number of followers. In this case, I had to make it clear that such a termination was untimely and would result in hefty compensation claims. The devil is often in the detail and the interpretation of “good cause” for termination can be complex. In my practice, I therefore always advise defining clear grounds for termination in the contract. This creates transparency and prevents the lifebelt from becoming a legal millstone. At the same time, you need to remain flexible enough to be able to react to unforeseen developments. It’s a balancing act that requires both legal expertise and a deep understanding of the dynamics of influencer marketing.

§ 628 BGB: When the wallet shrinks with the end of the contract

The financial side of premature contract termination is often a sensitive issue that regularly causes discussions in my law firm. This is where Section 628 of the German Civil Code comes into play, which regulates the financial aftermath, so to speak. In principle, the influencer is entitled to a portion of the fee if their previous services are of value to the client. But what exactly does “of value” mean? I remember a case in which an influencer was terminated after a controversy on social media. The company argued that his previous posts were now worthless. Here, we had to dive deep into the matter and analyze what concrete value the services had at the time they were provided. Such cases show how important it is to include detailed compensation provisions and sunset clauses in the contract. In my practice, I often recommend agreeing mechanisms for evaluating the services provided. This can include, for example, the definition of KPIs or the involvement of independent experts. The question of how long a company may continue to benefit from the influencer’s services after the end of the contract should also be clearly regulated. The aim is to find fair solutions that are fair to both sides and at the same time legally watertight. This often requires creative approaches and a deep understanding of both the legal and economic aspects of influencer marketing.

Conclusion: The key to success lies in contract design

After years of experience in this area, I can say with conviction: Sections 627 and 628 of the German Civil Code (BGB) are like a double-edged sword in influencer law. They offer flexibility and protection, but can also backfire if handled incorrectly. In my day-to-day work, I see time and again how important it is to know these regulations and apply them correctly. For influencers and companies alike: don’t underestimate the pitfalls of these paragraphs. Drafting contracts carefully is the be-all and end-all to avoid being left with a shambles later on. Clear termination clauses, well thought-out remuneration regulations and clever sunset clauses are not legal frippery, but your lifeline in stormy times. In my practice, I see time and again how important it is to tailor contracts to the individual needs and risks of the respective collaboration. It’s not just about avoiding legal pitfalls, but also about creating a solid basis for successful, long-term cooperation. In the fast-moving world of influencer marketing, where trends come and go like the weather in April, well-thought-out contracts provide a valuable compass. They give both sides the security they need to work together creatively and successfully without having to constantly fear legal pitfalls. My advice to anyone working in influencer marketing: Invest time and resources in drafting a professional contract. It may seem time-consuming at first glance, but it pays off in the long term. Because at the end of the day, well-drafted contracts can make the difference between a successful collaboration and a costly legal dispute.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.