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.

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.