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Geissler Legal - Legal Advisor for Compliance & Commercial Law
Influencer and contract law – old wine in new bottles?
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Influencer and contract law – old wine in new bottles?
Influencers have largely replaced traditional sales agencies. They are the new brand ambassadors. They are replacing traditional sales channels. They reach target groups in real time – and convey brand values more authentically than ever before.
But behind the seemingly casual content hides a tough business. For Brand owners and Social Media Agencies this can be expensive. Behind every posting lie economic interests – and legal compliance risks.
The legal risks are not new – but they appear in a new guise.
Here are the 7 deadly sins in agency and influencer contract law which should be avoided at all costs from a legal point of view:
Contents
1. Performance instead of sales quota: Setting KPIs
In the past, revenue was the benchmark. Today, CPM (cost per mille) and CPM (cost per mille) count. However, many influencer marketing contracts lack specific KPI specifications. This regularly leads to disputes over reach, visibility—and ultimately, compensation.
- Practical tip: KPIs must be precisely defined in the contract – including reference values, measurement methodology, and reporting obligations (e.g., "Insights"). Any clever contract drafting, which you should have a lawyer do, is better and more cost-effective than even the best contract management in the end.
2. Old debate, new context: IP and usage rights
In the past, sales representatives were also not allowed to simply use the company logo or product images for other purposes. The same applies today to influencer content: Who is allowed to reuse the content – and to what extent?
It becomes problematic if the rights have not been explicitly transferred and the brand wants to use a reel as an ad.
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Practical tip: Clearly define exploitation rights – by medium, duration, territory, and purpose. And: Influencers should know what they're getting into.
3. No joke: contractual penalties remain a sharp sword
Advertising mail not published? Trademark infringement? Exclusive cooperation breached? As with traditional distribution partnerships, contractual penalties apply here. However, these should be appropriate and precisely quantified so that they hold up in court later and are not overturned by the judge, effectively preventing the worst-case scenario—where no contractual penalty applies at all.
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Practical tip: Do not work with “flat-rate penalties”, but rather specifically define and quantify breaches of duty that can be penalized.
4. Trust is good – confidentiality is better (GHV / NDA)
Campaign content, product innovations, and budgets are all sensitive matters. Yet, many influencer and agency contracts often lack precise non-disclosure agreements (NDAs). The absence of such clauses, or their overly general nature, is risky—especially if the content is to be used at a later date or exclusively.
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Practical tip: Have your confidentiality agreements reviewed by a lawyer – without disproportionately restricting creative freedom.
5. Inadequate regulations on advertising labelling
Anything that is not properly labeled as advertising may be considered deceptive – and you may be held liable.
Since the rulings in the Cathy Hummels case, it has been clear: advertising content on social media must be clearly and correctly labeled – regardless of remuneration or product value.
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Safeguarding: Contractually stipulate the obligation to label advertising – with reference to Section 5a of the German Unfair Competition Act (UWG), the State Treaty on Media, and the recommendations of the media authorities. Tools or formulations ("# ad," "Paid partnership with...") should also be specifically agreed upon.
6. No clear approval process
Brand control is only possible with a control mechanism.
When creators publish unverified content, agencies and brand owners risk violating CI guidelines, competition law, or brand image.
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Assurance: Establish a tiered approval process with review and correction loops. The final approval should be binding—otherwise, no publication.
7. No exit scenario defined
What to do if everything goes wrong?
Whether it is a breach of contract, toxic behavior, or a reputational scandal – without clear exit clauses and rescission obligations, the only option is to go to court.
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Protection: Rights to extraordinary termination, obligation to block or delete content, as well as contractual penalties in the event of “reputational damage” or GHV violations.
8. Conclusion:
If agencies and brand owners want to operate professionally in influencer marketing, they need more than just likes and good images. Social media compliance begins with clean contracts. Precise, transparent, and risk-aware. Anything else is negligent. Old wine in new bottles.
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International Lawyer & certified Compliance Officer
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