The article explains the legal requirements in influencer marketing - in particular when and how advertising must be labeled, what penalties there are for violations (up to 500,000 euros) and what should be regulated in influencer contracts. He also gives practical tips on compensation models, liability issues and pitfalls in data protection and health products.
Note: This article provides a general overview of influencer marketing law and does not replace individual legal advice. If you have specific legal questions, you should consult a lawyer who specializes in media and advertising law.
Influencer Marketing has become an integral part of social media offerings such as Instagram, TikTok and Facebook. But as its importance grows, so do the legal requirements. An EU-wide study shows: 97 percent of all influencers regularly publish commercial content, but only 20 percent label advertising systematically (11). These numbers highlight a massive problem in social media.
The consequences of violations are drastic: the law against unfair competition (UWG) provides for fines of up to 300,000 euros (1). The State Media Treaty (MStV) allows sanctions of up to 500,000 euros (1). In addition to financial risks, there is a risk of warnings from the state media authorities and competition associations.
Legal certainty is not an option in influencer marketing, but rather essential. Anyone who ignores the advertising rules not only risks money, but also trust and reputation.
The labeling requirement is the central issue in influencer marketing law. But when exactly does a post have to be marked as advertising and what legal basis applies?
The Federal Court of Justice (BGH) provided important clarifications with its groundbreaking rulings of September 9, 2021. In the cases I ZR 90/20, I ZR 125/20 and I ZR 126/20, the BGH decided on the question of when influencers have to label their posts (2). The Federal Constitutional Court confirmed this case law in 2025 and determined that the labeling requirement serves consumer protection (3).
The basic rule is clear: Any post for which the influencer receives compensation must be marked as advertising. This compensation can be money, free products, services or events (6). Even the provision of goods free of charge constitutes consideration (10).
With the so-called Influencer Act, Section 5a Paragraph 4 UWG was clarified: Advertising statements without compensation are generally not subject to any labeling requirement (7). However, there is an important exception: The BGH found that influencers also advertise for their own benefit by “marketing their own image” (3). This self-promotion may also be subject to labeling.
Not only the “whether” but also the “how” of labeling is crucial for legal certainty.
The media authorities and the competition headquarters published comprehensive guidelines on advertising labeling (6). The most important rule:
Correct labeling: The terms “advertising” or “ad” at the beginning of an article are clear and legally secure (5). The labeling must be recognizable “at first glance” (6). “Paid partnership” is also permitted. The German language is important – not all social media users understand English terms.
Inadequate labeling: According to the ruling of the Munich I Regional Court, English terms such as “ad”, “sponsored” or “sponsored by” are not sufficient (2). Hashtags like #ad or #collaboration at the end of a post may not be sufficient (9). The state media authorities expressly warn against these formulations in online media.
Platform-specific requirements: For Instagram Stories, the tagging must be permanently visible. The Instagram Branded Content Tool should also be used. TikTok and Facebook also have their own labeling options. Particularly strict MStV advertising rules apply to videos on social networks (7).
Things get particularly tricky when you buy products yourself and use tap tags or links. The Berlin Regional Court decided in 2018 that posts should be labeled as advertising, even for products purchased by oneself, if they contain a link to the manufacturer's account (1). The BGH specified in I ZR 90/20: If not just a tap tag but a link to the manufacturer is placed, this indicates the advertising nature of a post (2). Although these tap tags work like links, the BGH differentiates between the two - why remains unclear (2).
For influencers with a large reach (from 600,000 to 700,000 followers), the legal situation assumes that the commercial purpose of their posts is obvious (2). In these cases, labeling may be unnecessary. However, this limit has not been conclusively clarified.
The media authorities' new guidelines offer practical guidance with a labeling matrix. This means you can see at a glance whether, how and where labeling needs to be done for the respective social media offer (7).
Liability for missing advertising labels is complex and does not just affect the influencer alone. There is a multi-tiered system.
The influencer has primary responsibility for labeling their content. Violations of competition law result in warnings, injunctions and fines (1). Personal liability can be significant, especially when multiple posts are affected.
The commissioning company is liable as the client according to the law against unfair competition (2). It has a duty to ensure lawful advertising. The company must inform the influencer of the labeling requirement, provide appropriate specifications and monitor compliance. It must not turn a blind eye to violations (2).
Contracts should contain clear provisions on liability and labeling. The Düsseldorf Higher Regional Court ruled that advertising agreements can be immoral and ineffective if they provide for publication without labeling (8). Indemnification clauses are possible, but do not release the company from its own due diligence.
A legally secure influencer contract is the basis of every professional cooperation. Modern contracts in 2025 must regulate more than before (9).
The contract should specify precisely: type and scope of content (posts, stories, reels, videos), number of postings, social media platforms, time period, qualitative requirements and approval processes (8). The more detailed the description, the lower the potential for conflict (10).
The remuneration must be precisely determined - whether fixed fees, affiliate links, barter deals or hybrid models (8). In barter deals, the monetary value must be quantified for tax purposes (9). Even if there is no monetary compensation, this should be documented contractually.
The question of usage rights is often underestimated, but is of central importance for the later use of the content.
Almost all content is protected by copyright (10). Without clear regulations, all rights remain with the influencer. Companies should be granted usage rights for various purposes: spatial (global or regional?), temporal (how long?), factual (only social media or also print?) and clarify the question of exclusivity (8). The granting of comprehensive rights should be compensated accordingly.
Since labeling is legally so sensitive, it should be regulated explicitly and in detail in the contract. The contract should specify the exact wording (“advertising”, “ad”), the position (beginning of the article) and consequences for violations (8). An example wording: “All contributions must be marked with the term ‘advertising’ at the beginning” (10).
Competition clauses are common, but must be appropriate (10). A typical rule: “The influencer undertakes not to advertise competing products during the contract period and for six months thereafter.” Duration, notice periods, data protection according to the GDPR and confidentiality should also be regulated (10).
At Ad Specialist, we have learned from over 10,000 influencer campaigns that contractual compensation coverage is crucial for campaign success. Many companies make the mistake of agreeing to flat-rate prices without protecting themselves against underperformance.
The problem: For example, you negotiate 20,000 views at a CPM (cost per thousand contacts) of 40 euros and pay 800 euros. But if the video only reaches 10,000 views, you suddenly pay 80 euros CPM - twice as much. Without a contractual agreement, you have no control.
Our solution: compensation clauses as standard
We therefore write compensation clauses in all of our influencer contracts: “If the achieved reach deviates by X% from the agreed reach, the company will receive an additional Instagram story or a new integration as compensation.” This way you are protected in the event of underperformance.
Even better: graduated CPM models
A more professional solution is staggered CPM models, which we use successfully for customers such as Upway, Livom and Duschbrocken. The principle: The TKP automatically adapts to the range actually achieved.
Example:
If you underperform, your costs automatically fall and your risk is drastically reduced. If you overperform (e.g. 500,000 instead of 100,000 views), your CPM even drops from 50 to 16 euros - a welcome bonus, but not your main goal (16).
Important for legal protection:
These contractual regulations not only protect your budget, but also create a professional basis for collaboration. You can find out more about our proven price negotiation strategies in this video:
Negotiate influencer prices correctly: The professional formula from 10,000+ campaigns (16)
Moritz Lambrecht explains how you as a brand can never pay too much for influencer campaigns again and enable profitable growth through data-driven negotiation.
You can also find more insights on this topic in Moritz’s LinkedIn post about influencer price negotiations (17).
In addition to the basics, there are some specific areas where extra caution is required.
Particular caution is required with health products. The Medicines Advertising Act prohibits misleading advertising of medicines. Influencers are not allowed to make promises of healing (10). The Health Claims Ordinance applies to dietary supplements and the Cosmetics Ordinance applies to cosmetics.
Data protection is playing an increasingly important role in Influencer Marketing, especially in competitions.
Personal data is collected during competitions. The GDPR requires comprehensive information in accordance with Article 13: purposes, responsible parties, recipients, deletion periods and rights of participants (12). The question of accountability (influencer, company or collective) needs to be clarified (13). The ban on coupling was controversial, but according to the Frankfurt Higher Regional Court it is permissible if communication is transparent (14).
Data protection requirements also apply when integrating affiliate links and tracking technologies.
The integration of affiliate links or tracking requires information from the user. With Lead Generation Forms, the company becomes the controller of the data (15). Social media platforms such as Instagram and Facebook often process data on US servers, which requires additional protection measures.
With these specific tips, you can ensure that your Influencer Marketing campaigns are legally compliant from start to finish.
Before the campaign:
During the campaign:
After the campaign:
As an experienced agency for Influencer Marketing, we know exactly what is important when it comes to legal protection.
At Ad Specialist, we have learned from over 10,000 influencer marketing campaigns that legal certainty is the basis for success. Our expertise includes:
Legally compliant contracts as standard: We work with specialized media lawyers and ensure that every contract meets all requirements - from labeling requirements to usage rights to the GDPR.
Professional Briefings: Our briefings contain precise instructions on labeling, permitted statements and legal requirements. We actively train influencers.
Control through Contacts: With our Contacts system we keep an eye on all communication flows. Every agreement is documented - this creates transparency and legally secure documentation.
Proactive risk management: We identify legal pitfalls in the planning phase and develop solutions before problems arise.
Influencer Marketing offers enormous potential for authentic brand communication. This potential can only be exploited if the legal framework is adhered to. The BGH rulings (I ZR 90/20, I ZR 125/20, I ZR 126/20) and the new influencer law have created clarity, but gray areas remain.
The costs of prevention are minimal compared to fines and reputational damage. Companies that rely on legally secure processes gain a competitive advantage. With the right guidelines and professional support, Influencer Marketing becomes a reliable part of your marketing strategy – legally secure, transparent and successful.
You want to set up your campaigns in a legally compliant manner? Ad Specialist supports you with over 10 years of experience. Contact us for a non-binding consultation and find out how we can make your campaigns a success – creatively, effectively and legally.
(1) GR Lawyer: “Influencer Marketing: Labeling Obligation and Surreptitious Advertising”. https://www.gr-anwalt.de/magazin/artikel/influencer-marketing-kennzeichnungspflicht-und-schleichwerbung
(2) 121WATT (2024): “BGH rulings: Is influencer marketing surreptitious advertising?”. https://www.121watt.de/social-media/ist-influencer-marketing-schleichwerbung/
(3) Fachanwalt.de (2025): “BVerfG decision of April 24, 2025 on labeling requirements”. https://www.fachanwalt.de/ratgeber/klarheit-im-influencer-marketing-bvg-bekraeftigt-kennzeichnungspflichten-in-sozialen-medien
(4) WBS Legal (2025): “Influencers and surreptitious advertising – when, how and where do you have to label them?”. https://www.wbs.legal/medienrecht/social-media-recht/influencer/schleichwerbung-produktplatzierung-affiliate-links/
(5) IHK Frankfurt: “Influencer marketing – labeling requirement and legal basis”. https://www.frankfurt-main.ihk.de/recht/uebersicht-alle-rechtsthemen/wettbewerbsrecht/unlauterer-wettbewerb/irrefuehrende-werbung/influencer-marketing-5196192
(6) Competition Center (2024): “Advertising labeling guidelines for influencer marketing”. https://www.wettbewerbszentrale.de/werbekennzeichnung-beim-influencer-marketing-wettbewerbszentrale-veroeffentlicht-leitfaden/
(7) Medienanstalt NRW: “Advertising labeling in influencer marketing”. https://www.medienanstalt-nrw.de/werbung.html
(8) WBS Legal (2024): “The Influencer Contract”. https://www.wbs.legal/medienrecht/social-media-recht/influencer/vertraege/
(9) Attorney Marian Härtel (2025): “Modern contract design 2025 in the influencer and agency business”. https://itmedialaw.com/moderne-vertragsgestaltung-2025-im-influencer-und-agenturgeschaeft/
(10) Basic Thinking (2025): “9 Contents for Influencer Contracts”. https://www.basicthinking.de/blog/2023/07/20/influencer-werden-vertrag/
(11) Federal Environment Agency: “Social media: Four out of five influencers violate labeling requirements”. https://www.umweltbundesamt.de/presse/pressemitteilungen/social-media-vier-von-fuenf-influencerinnen
(12) Datenschutz.org (2025): “Data Protection Competition 2025”. https://www.datenschutz.org/gewinnspiel/
(13) SBS Legal: “Data protection requirements for social media marketing”. https://www.sbs-legal.de/blog/datenschutz-anforderungen-an-das-social-media-marketing
(14) eRecht24 (2025): “GDPR coupling ban – newsletters and competitions”. https://www.e-recht24.de/datenschutz/11551-kopplungsverbot-dsgvo-newsletter-gewinnspiele.html
(15) Brixon Group (2025): “Use corporate influencers in a legally compliant manner: GDPR Guide 2025”. https://brixongroup.com/de/corporate-influencer-rechtssicher-einsetzen-der-dsgvo-konforme-leitfaden/
(16) Ad Specialist / Moritz Lambrecht (2024): “Negotiate influencer prices correctly: The professional formula from 10,000+ campaigns”. YouTube. https://www.youtube.com/watch?v=kFMHX96vZ7s
(17) Moritz Lambrecht (2025): “Dear brands, please stop doing influencer marketing wrong”. LinkedIn. https://www.linkedin.com/posts/moritzlambrecht_liebe-brands-bitte-h%C3%B6rt-auf-influencer-activity-7380859386992209920-tHDu
Through his performance-oriented and effective approach, he has built a reputation as a leading expert and speaker in German e-commerce. In this blog - as well as on LinkedIn and his YouTube channel - he regularly shares valuable insights about data-driven influencer marketing.
Learn more about Moritz
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