Influencers: when marketing suddenly becomes commercial agency law

Influencer marketing is no longer just about image cultivation. Many campaigns are measurably about sales, leads, subscriptions and recurring revenue. Discount codes, affiliate links and store integrations are part of the standard repertoire – and this brings a legal matter to the fore that often nobody in marketing has on their radar: commercial agency law.

This is not an academic quibble. Anyone who sets up a cooperation in such a way that the influencer activity is not just “advertising”, but structurally works towards the conclusion of contracts, can find themselves in a constellation in which §§ 84 ff. HGB suddenly come into play. And then it’s no longer just about content releases, rights of use and labeling, but about issues such as information, billing, notice periods, follow-up commissions and – in certain cases – even the infamous compensation claim under Section 89b HGB.

Contract labels don’t help – obligations and actual practice are crucial

In practice, the document is labeled “influencer contract”, “cooperation”, “brand deal” or “affiliate agreement”. Legally, this label is only of limited use. The decisive factor is what is actually agreed – and what is implemented in everyday life. This is precisely where the risk arises, because although many contracts say “marketing” in language, they actually organize a sales-like setup: continuous posts with a clear sales agenda, regular reminder stories, concrete conversion targets, reporting obligations and remuneration that is primarily dependent on the deal.

Commercial agency law does not ask whether someone posts pretty pictures. It asks whether a self-employed person is “permanently entrusted” with brokering or concluding transactions for an entrepreneur (Section 84 (1) HGB). Self-employment is often the unproblematic part in the influencer sector. The other two components are interesting: continuity (“permanently entrusted”) and the reference to brokering specific transactions.

Where the boundary runs: Brand communication vs. business mediation

Pure brand communication – i.e. awareness, image, product presentation without sales pressure – is typically not sales representative territory. Things change when the service is no longer just about presentation, but also about an obligation to actually promote the sale. The classic bridge there is performance mechanics: Discount codes, affiliate links, personalized landing pages, “creator stores”, commissions per sale or lead. Such instruments are not forbidden or problematic per se. However, depending on the overall picture, they can shift the nature of the collaboration: away from a content service contract and towards a structured sales initiation.

It becomes particularly tricky when the cooperation is not designed as a single, one-off measure, but as ongoing sales support within a time window. “Constantly entrusted” does not necessarily mean years of cooperation. A campaign-type cooperation can also be “ongoing” if it provides for a series of recurring sales impulses with a clear focus on closing deals. In practice, these are typical campaigns that run for weeks, with a fixed content plan, sales KPI and regular optimization loops.

Why this can be expensive: When the protective mechanism of the HGB takes effect

The reason why this topic is not just “nice to know” for companies and agencies lies in the legal consequences. Commercial agency law is a protective right. It is historically designed to protect independent sales partners who build up customers, initiate sales and thus contribute economically to the company’s sales structure – without being involved under employment law. If this protection mechanism takes effect, it cannot simply be formulated away. Many standards are mandatory or at least have a strong “guiding principle”. And this is precisely what clashes with the logic popular in influencer contracts: short terms, exit options at any time, performance-based remuneration without a deep billing regime.

First of all, transparency and information issues are of practical relevance: anyone who remunerates on a commission-like basis must be able to provide clear accounting. Commercial agency law has far-reaching information requirements for this, which create effort in implementation – especially if tracking, attribution and platform data are not as clean as the contract suggests. Termination issues can also be unpleasant: While marketing cooperations often operate with very short deadlines, the mission statement for commercial agents provides for different deadlines and protective ideas. If the terms are “too harsh”, this can lead to discussions about damages and adjustments in the event of a dispute.

The greatest economic risk in certain constellations is the compensation claim (Section 89b HGB). The core: If the commercial agent introduces new customers to the entrepreneur or significantly expands existing customer relationships and the entrepreneur continues to derive significant benefits from this after the end of the contract, compensation may be owed based on the expected future commission margin. This institution is not “automatically” relevant for every influencer cooperation. But as soon as a setup is created that systematically builds up customer bases (e.g. recurring purchases, subscriptions, long-term customer data retention), the issue should not be ignored.

The typical risk constellations in everyday life as an influencer

In many cases, the sales agent risk does not arise from a single clause, but from a mixture of remuneration, target setting and management. For example, if a cooperation is formulated in such a way that the influencer must continuously “push” the code, certain sales targets must be achieved, weekly reports must be provided and the remuneration is predominantly dependent on sales, this creates an overall picture that legally looks more like a distribution agreement than a pure advertising service.

Factual involvement can also play a role. If the influencer is managed like a sales arm – with binding sales argumentation lines, script specifications, approvals, optimization instructions and conversion pressure – then the practice may tell a different story than the contract text. In disputes in particular, both the documents and the actual process count.

Two clean paths: either marketing performance – or consciously shaping sales

Legally compliant design does not mean banning performance marketing. It means clarifying the setup and documenting it properly. Essentially, there are two ways that work.

The first approach is the classic advertising service. Here, the focus is on deliverable-based performance: specifically defined content, formats, publication dates, approval processes, usage rights, labeling, do’s and don’ts. There may be a performance-based component, but it should not be the main character. Above all, there should be no ongoing obligation to mediate. Discount codes and links can occur as a feature, but not as a central obligation core that pulls in the direction of “sales entrustment”.

The second way is a conscious sales model. If a company clearly wants to make sales via influencers, this is legitimate from a business perspective. However, the legal framework should then reflect this reality. This means: clean commission and data logic, clarification of billing and tracking issues in advance, consistent termination mechanisms and terms, dispute prevention via clear attribution rules and auditable data. If you want sales, you shouldn’t try to treat sales like “a few stories”.

Both paths are feasible in practice. The problem is the in-between: Sales logic in operational terms, but a marketing contract in legal terms – and then being surprised in the event of a dispute that other rules are suddenly being discussed.

What companies, agencies and creators should pragmatically examine now

For companies and agencies, the best way to get started is to take stock: Which collaborations are purely brand-oriented, which are clearly performance-oriented? Where are there ongoing obligations aimed at closing deals? How dominant is performance-based remuneration? To what extent is the creator involved in sales? The clearer this classification, the easier the contract architecture will be.

For influencers, the question is a mirror image: Is a pure content service owed or an ongoing sales promotion? Are there commission-like structures without a transparent database? Is long-term customer loyalty being built up without the remuneration system clearly reflecting this? Here too, clarity creates negotiating power and reduces the potential for disputes.

Conclusion

Influencer marketing is not just media and competition law, but can also be distribution law, depending on the setup. Anyone who runs collaborations with strong performance elements should at least consider the legal aspects of commercial agency law. Not out of panic, but out of commercial common sense: a clear classification, consistent contract drafting and a practice that fits the contract avoid the typical “unrecognized” cost risks.

Anyone who draws up influencer contracts professionally in 2026 will make a clear distinction between advertising services and sales – and design both in such a way that it works operationally and remains legally robust.

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.