Making influencer marketing legally compliant: A guide for startups

Influencer marketing has become an important tool in digital marketing in recent years. For start-ups, it offers an effective way to build reach and address target groups. However, this form of marketing also harbors legal risks that can lead to severe penalties if not observed. This guide highlights the most important legal aspects that start-ups need to consider when designing influencer campaigns.

Legal framework of influencer marketing

Influencer marketing operates in the area of conflict between different areas of law, in particular competition law, media law and data protection law. Central standards are:

1. the Unfair Competition Act (UWG), in particular Section 5a UWG on misleading by omission and Section 6 UWG on comparative advertising.
2. the Interstate Broadcasting Treaty (RStV) or the Interstate Media Treaty (MStV), which contains regulations on the labeling of advertising in telemedia.
3. the General Data Protection Regulation (GDPR) with regard to the processing of personal data in the context of influencer campaigns.

A central principle that runs through all relevant legislation is the requirement to separate advertising from editorial content and the obligation to label advertising.

Mandatory labeling of advertising

The obligation to label advertising is probably the most critical point in influencer marketing. According to Section 5a (6) UWG and Section 22 (1) MStV, advertising must be clearly recognizable as such. This also applies to native advertising formats, where advertising is designed in the style of editorial content.

In practice, certain terms have become established for labeling, which have been recognized as sufficient by case law:

– “Advertisement” or “Werbung”
– “Sponsored by [Markenname]”
– For English-language posts: “Ad” or “Advertising”

It is important that the labeling must be recognizable to the average user at first glance. Hidden or ambiguous references such as “#ad” at the end of a long text or the use of unclear terms such as “powered by” are not sufficient.

Drafting contracts with influencers

The legally compliant drafting of contracts with influencers is of great importance for start-ups. The following points should be taken into account:

1. clear definition of the services to be provided, including the type, scope and timing of the posts.
2. regulations on the correct labeling of the advertising content.
3. granting of rights of use to the content created, in particular for further use by the startup.
4. agreements on exclusivity and possible restrictions on competition.
5. regulations on liability, in particular in the event of legal violations.
6. clear remuneration regulations, including any performance-related components.

It is advisable to also include an obligation for the influencer to comply with all relevant legal regulations in the contracts and to provide them with specific requirements for labeling the advertising content.

Product placements and surreptitious advertising

Particular care must be taken with product placements. According to Section 8 (7) MStV, surreptitious advertising, i.e. the unmarked mention or presentation of products for advertising purposes, is not permitted. Even if an influencer has received a product free of charge and mentions it in their posts, this can be considered advertising content and must be labeled accordingly.

Case law has developed some important guidelines in this area in recent years. For example, the Higher Regional Court of Frankfurt am Main ruled in a much-noticed judgment (case no. 6 W 35/19) that an advertising label may also be required for mere links to Instagram accounts of companies if the post contains an advertising surplus.

Data protection aspects

Influencer campaigns often involve the processing of personal data, whether from the influencer’s followers or from participants in competitions. The requirements of the GDPR must be strictly adhered to here. This includes in particular

1. obtaining effective consent for data processing where required.
2. providing transparent information on data processing in accordance with Art. 13 and 14 GDPR.
3. implementing technical and organizational measures to protect the data.
4. concluding data processing agreements if service providers are involved.

Practical tips for start-ups

Based on his experience as an IT legal expert, the following practical tips for start-ups can be derived:

1. clear guidelines: Develop clear guidelines for your influencer cooperations that take all legal requirements into account.

2. employee training: Make sure that all employees involved are familiar with the legal basics of influencer marketing.

3. contract management: Implement systematic contract management for influencer cooperations.

4. monitoring: Monitor the implementation of your campaigns to ensure that all legal requirements are met.

5. documentation: Keep careful documentation of all influencer activities in order to be able to provide evidence in the event of a dispute.

6. legal advice: Seek legal advice at an early stage for complex campaigns or new advertising formats.

The legally compliant design of influencer marketing campaigns requires careful planning and implementation. However, start-ups that observe the legal framework can benefit from this effective form of marketing without exposing themselves to unnecessary legal risks. A proactive approach to the legal challenges can not only avoid problems, but also serve as a mark of quality towards influencers and target groups.

In view of the complexity and constant development of case law in this area, it is advisable for start-ups to keep up to date with the latest developments and to seek expert legal support if necessary.

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.