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Rechtsanwalt Marian Härtel - ITMediaLaw

Jurisdiction agreements in influencer contracts

19. December 2023
in Law on the Internet
Reading Time: 3 mins read
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gerichtsstandsvereinbarungen in influencervertraegen
Key Facts
  • Jurisdiction agreements in influencer contracts are legally challenging and deviate from standard contract formats.
  • The court ruled that an influencer is not automatically considered a merchant, which affects jurisdiction.
  • § Section 38 ZPO requires that both parties are merchants in accordance with the German Commercial Code (HGB) in order to make valid agreements on the place of jurisdiction.
  • The status of an entrepreneur under Section 14 BGB is not identical to that of a merchant under the German Commercial Code (HGB).
  • The decision creates a legal gray area for influencers, whose activities are often not classified as commercial trade.
  • Agreements on the place of jurisdiction may be invalid if they do not comply with the provisions of Section 38 ZPO.
  • In special cases, such as influencers abroad, such an agreement can provide legal certainty.

In my current legal practice, I am currently working on a case that deals with the issue of jurisdiction agreements in influencer contracts. This case offers revealing insights into the legal treatment of such agreements and the classification of influencers in the context of commercial law.

Content Hide
1. The facts
2. The legal assessment
3. The importance for influencers
3.1. Author: Marian Härtel

The facts

In the specific case, a jurisdiction agreement was made in an influencer management contract. So far, so usual. When we sued for outstanding remuneration, I was faced with the problem of which court had jurisdiction. However, the district court first seized declined jurisdiction. The court’s reasoning was based on the finding that in this case the influencer was not to be regarded as a merchant within the meaning of Section 38 ZPO. Since we had also not presented the full scope of the influencer’s activities, it was also criticized that I as a lawyer had not sufficiently presented the scope of the influencer’s activities, jurisdiction would only be given to the court where the defendant agency is based.

The legal assessment

The court’s decision is based on the interpretation of Section 38 of the German Code of Civil Procedure (ZPO), which governs the jurisdiction of a court if there is a corresponding agreement between merchants. In this context, it is crucial to understand that Section 38 ZPO is an exception to the principle of statutory jurisdiction and has a prorogative effect that allows the parties to declare a court that does not have jurisdiction to be competent. However, this presupposes that both contracting parties are merchants within the meaning of the German Commercial Code (HGB).

In its decision, the court clarified that the status of an entrepreneur under Section 14 BGB is not automatically equivalent to that of a merchant under HGB. While Section 14 of the German Civil Code (BGB) defines the term entrepreneur broadly and includes any natural or legal person or partnership with legal capacity that acts in the exercise of its commercial or independent professional activity when concluding a legal transaction, the term merchant is defined more narrowly in the German Commercial Code (HGB). It refers specifically to persons who operate a commercial business. This includes not only traders entered in the commercial register, but also those whose company requires a commercially organized business operation in terms of type and scope.

This results in a legal gray area with regard to influencers, as their activities do not always clearly meet the criteria of a commercial enterprise within the meaning of the German Commercial Code (HGB). Many influencers act as solo self-employed persons or small business owners, which makes the application of Section 38 ZPO problematic. The court decision therefore emphasizes the need for a differentiated consideration of the individual case in order to determine whether an influencer can be considered a merchant within the meaning of the German Commercial Code.

The importance for influencers

This decision has far-reaching implications for the drafting of contracts in the field of influencer marketing. It emphasizes that influencers are not considered merchants per se within the meaning of commercial law. This has a direct impact on the effectiveness of jurisdiction agreements in corresponding contracts. In practice, this means that such agreements in influencer contracts are often of limited use and may not provide the intended legal certainty.

In view of this legal uncertainty, jurisdiction agreements appear to be potentially pointless in many cases. What is even more serious is that, in case of doubt, they could even be inadmissible. This follows from the fact that an agreement on jurisdiction that does not meet the requirements of Section 38 ZPO can be considered invalid. Furthermore, if such a clause is used in relation to an influencer who does not qualify as a merchant, it could be considered an unreasonable disadvantage within the meaning of Section 307 of the German Civil Code (BGB) and could therefore be subject to a warning.

However, there are specific situations in which the inclusion of a jurisdiction agreement in an influencer contract can be useful. This applies in particular to cases in which the influencer is not based in Germany or if their whereabouts may be unknown in the future. In such constellations, a jurisdiction agreement can help to create legal certainty and facilitate the enforcement of claims. It then serves as an instrument to ensure a foreseeable and accessible place of jurisdiction in the event of disputes.

 

Marian Härtel
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.

Tags: Commercial registerContract designGermanyInfluencerLegal certaintyLegal entityReviewSicherheit

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  • Informationen
    • Ideal partner
    • About lawyer Marian Härtel
    • Quick and flexible access
    • Principles as a lawyer
    • Why a lawyer and business consultant?
    • Focus areas of attorney Marian Härtel
      • Focus on start-ups
      • Investment advice
      • Corporate law
      • Cryptocurrencies, Blockchain and Games
      • AI and SaaS
      • Streamers and influencers
      • Games and esports law
      • IT/IP Law
      • Law firm for GMBH,UG, GbR
      • Law firm for IT/IP and media law
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Testimonials
    • Team: Saskia Härtel – WHO AM I?
    • Agile and lean law firm
    • Price overview
    • Various information
      • Terms
      • Privacy policy
      • Imprint
  • Services
    • Support and advice of agencies
    • Contract review and preparation
    • Games law consulting
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Legal advice in corporate law: from incorporation to structuring
    • Legal compliance and expert opinions
    • Outsourcing – for companies or law firms
    • Booking as speaker
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