The commercial confirmation letter: A tool in influencer marketing?

Introduction: The KBS in the context of influencer marketing

The commercial letter of confirmation (KBS) is a traditional instrument in commercial law that could take on a special significance in the modern world of influencer marketing. In an industry in which business relationships are often characterized by informal agreements, the CAB offers an opportunity to create legal certainty and clarity. This letter, which is an exception to the principle that silence in legal transactions does not imply consent, can serve as a binding confirmation of a verbal agreement under certain conditions.

In the dynamic and often fast-moving world of influencer marketing, where agreements are often made in informal settings or via digital communication channels, the CAB can play a crucial role. It enables the parties involved to obtain written confirmation of agreements that might otherwise remain unclear or disputed. Especially in cases where important details such as remuneration, copyrights, publication deadlines or specific performance requirements are involved, a CAB can help to avoid misunderstandings and ensure compliance with the agreements.

The CAB should be sent promptly after the verbal agreement and should clearly reflect the essential content of the agreement. The recipients of the CAB are then required to immediately object to any deviations from their own opinion. In commercial transactions, silence in response to such a letter can be interpreted as consent to the conditions set out therein, which can have a considerable legally binding effect.

Given the increasing professionalization in the field of influencer marketing and the need to create a legal framework that protects both influencers and companies, the CAB could be an effective tool to increase legal certainty in this industry. Es fördert Transparenz und Verbindlichkeit in Geschäftsbeziehungen, die sonst durch ihre Informalität und Schnelllebigkeit gekennzeichnet sind.

Legal basis and requirements

The application of the CAB requires that certain legal conditions are met. The personal area of application is the first decisive point. The aim here is to ensure that the principles of the CAB apply to senders and recipients, which can contribute to legal certainty. This generally includes merchants, but also other persons who participate in legal transactions like a merchant. The second requirement is contract negotiations with a need for clarification. This means that negotiations must have taken place between the parties which require clarification due to their form – for example, verbally or by telephone. Another important aspect is the distinction between a genuine CAB and a mere order confirmation. A genuine CAB refers to a (supposedly) concluded contract, whereas an order confirmation merely represents the acceptance of an offer. In addition, the letter must reflect the essential content of the contract negotiations and be sent to the recipient shortly after the negotiations. An objection period of 2-5 days after receipt of the letter must also be observed. Finally, the sender may not make any falsifications in breach of trust.

Challenges and applicability in influencer marketing

The application of KBS in influencer marketing poses specific challenges. A key question is whether influencers can be regarded as merchants within the meaning of the German Commercial Code (HGB). Many influencers do not meet the classic criteria of a merchant under Section 1 HGB, which makes it difficult to classify them in this context. This issue is similar to the discussion that has already taken place here on the blog in connection with jurisdiction agreements for influencers. In addition, the application of the CAB requires a certain degree of legal understanding and professionalism, which is not always the case for everyone involved in influencer marketing. The quick response time for an objection and the need to fully understand the meaning of such a letter can present further challenges.

In summary, the CAB can be a potentially useful tool in influencer marketing to formalize and legally secure informal agreements. It offers advantages such as legal certainty and efficiency, but also poses challenges, particularly with regard to the understanding and responsiveness of those involved and the legal classification of influencers as merchants. Influencers and advertisers should be aware of the significance and legal implications of such a letter and, if necessary, seek legal advice to protect their interests. In an industry characterized by rapid developments and flexible business models, the CAB could be a valuable tool for strengthening the legal basis for cooperation and minimizing uncertainties. However, it is important that both parties – both influencers and advertisers – understand and respect the legal implications and requirements of a CAB. This can create a solid basis for successful and legally compliant business relationships in the dynamic environment of influencer marketing.

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.