Knowledge for brands
Plan influencer marketing on solid legal ground:what brands need to know.
If you pay creators, you share responsibility for their advertising. Here you will find the key rules on disclosure, liability, contracts, usage rights, the artists' social insurance levy and giveaways. This page is not legal advice.
When influencer advertising must be disclosed
A post must be labelled as advertising if the creator receives something in return for it, i.e. a fee, a free product or another benefit. This follows from Section 5a(4) of the German Act against Unfair Competition (§ 5a Abs. 4 UWG): the commercial purpose of an action must be made clear if it is not immediately apparent from the circumstances.
In addition, Section 6(1) of the German Digital Services Act (§ 6 Abs. 1 DDG) requires commercial communication to be clearly recognisable as such, and Section 22 of the Interstate Media Treaty (§ 22 MStV) applies to advertising in telemedia. The guidelines of the German state media authorities (Medienanstalten) recommend the German terms “Werbung” (advertisement) or “Anzeige” (ad), clearly visible at the start of a post. In livestreams, the label should be visible for the entire duration.
The key legal bases
| § 5a Abs. 4 UWG | the commercial purpose must be made clear if it is not apparent from the circumstances |
| § 6 Abs. 1 DDG | commercial communication in digital services must be clearly recognisable and the client identifiable |
| § 22 MStV | advertising in telemedia must be recognisable as such and separated from other content |
| § 8 Abs. 2 UWG | claims arising from infringements by agents are also directed against the commissioning company |
| BGH, 09.09.2021, I ZR 90/20, I ZR 125/20, I ZR 126/20 | landmark rulings on the disclosure of influencer posts |
See also: guidelines of the German state media authorities on ad disclosure in online media.
What the Federal Court of Justice decided in 2021
On 9 September 2021, the German Federal Court of Justice (Bundesgerichtshof, BGH) ruled in three cases (I ZR 90/20, I ZR 125/20 and I ZR 126/20) on the disclosure of Instagram posts. The core of the rulings: if a creator receives something in return for a post, they must label it as advertising. A large following alone does not make the advertising purpose obvious.
According to these rulings, posts in which a creator shows products without receiving anything in return do not automatically have to be labelled, as long as they are not excessively promotional. This exception plays no role for campaigns, because there is always something in return.
Why the brand shares liability for its creators
If the label is missing from a paid post, it is not only the creator who can receive a cease-and-desist letter (Abmahnung). Under Section 8(2) UWG, injunctive claims are also directed against the company on whose behalf the creator acted. The brand therefore shares responsibility for the advertising it pays for.
That is why monitoring is part of the campaign: we write the disclosure into every contract, check every post before approval and verify after publication that the label is visible. The same applies to claims about the product, such as efficacy claims for cosmetics or food supplements.
What belongs in a contract with creators
- deliverables: platform, format, number of posts and dates
- disclosure: term, placement, and in livestreams for the entire duration
- approval: process and number of revision rounds
- usage rights: channels, duration, territory and editing
- exclusivity: which industry, for what period
- fee, payment terms and what happens if a post is not delivered
- mandatory statements and statements that must not be made
Usage rights and the artists' social insurance levy
The creator is the author of their content. If you want to use posts on your own channels or in ads, this must be expressly agreed, including channels, duration, territory and permitted edits. Anyone shown in the content also has a right to their own image under Section 22 of the German Art Copyright Act (§ 22 KUG).
Fees paid to self-employed creators may be subject to the artists' social insurance levy (Künstlersozialabgabe). In 2026 the rate is 4.9%. The levy is paid by the commissioning company and must not be deducted from the creator's fee. Payments to a GmbH or UG are not subject to the levy. We show the levy in our quote. If in doubt about whether your company itself must register, check with the artists' social insurance fund (Künstlersozialkasse) or your tax adviser.
Giveaways with creators
A giveaway requires terms and conditions of entry stating the organiser, entry period, prize, how the winner is chosen and data protection information. Entry should be free, because a stake can turn a giveaway into gambling. The rules of the respective platform also apply. The giveaway post is advertising and is labelled as such. This page does not replace legal advice. For specific questions, please consult a lawyer.
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FAQ
Frequently asked questions
When must influencer advertising be disclosed?
Whenever the creator receives something in return for the post, such as a fee or a free product. The legal bases are § 5a Abs. 4 of the German Act against Unfair Competition (UWG), § 6 Abs. 1 of the German Digital Services Act (DDG) and § 22 of the Interstate Media Treaty (MStV). This answer is not legal advice.
How must an influencer post be labelled?
The guidelines of the German state media authorities recommend the German terms “Werbung” (advertisement) or “Anzeige” (ad), clearly visible at the start of the post. In livestreams, the label should be visible for the entire duration.
Is a brand liable if the creator does not disclose?
It can share liability. Under § 8 Abs. 2 UWG, injunctive claims arising from infringements by agents are also directed against the commissioning company. Brands should therefore set out disclosure in the contract and monitor it.
What did the Federal Court of Justice decide on influencer advertising in 2021?
On 9 September 2021, in cases I ZR 90/20, I ZR 125/20 and I ZR 126/20, the German Federal Court of Justice (BGH) ruled that posts made in return for something must be labelled as advertising. Posts without anything in return do not automatically have to be labelled, as long as they are not excessively promotional.
Who pays the artists' social insurance levy on influencer campaigns?
The artists' social insurance levy (Künstlersozialabgabe) is paid by the commissioning company, not the creator. In 2026 the rate is 4.9% of fees paid to self-employed creators. If in doubt about whether your company must register, check with the Künstlersozialkasse or your tax adviser.
May I use creator posts in my ads?
Only with usage rights agreed in the contract. These cover channels, duration, territory and permitted edits. Without this agreement you may not reuse the content, even if you paid for the campaign.
What do I need to consider for a giveaway with creators?
You need terms and conditions of entry stating the organiser, period, prize, how the winner is chosen and data protection information. Entry should be free, and the platform's rules also apply. The post itself is advertising and is labelled as such.
Law & disclosure
A campaign without legal pitfalls?
Disclosure, contracts and usage rights are part of every campaign we run. Talk to us about your plans.