Is my brand liable in Germany if a creator doesn’t label an ad?

The first breach is the creator’s own. Under § 5a(4) UWG, anyone who fails to make the commercial purpose of a post clear acts unfairly, unless the purpose is obvious from the context, provided the omission is likely to prompt a commercial decision that would not otherwise have been made. Without payment or a similar consideration from your brand, received or promised, there is no commercial purpose in its favour. But a consideration is presumed unless the creator credibly shows there wasn’t one. In 2021 the Federal Court of Justice (Bundesgerichtshof, BGH) upheld a ban against an influencer herself: she had received a consideration from the manufacturer for her post, and it was not labelled clearly enough (I ZR 90/20).

Your brand can be held responsible for that breach too. § 8(2) UWG says that if an employee or agent (Beauftragter) commits the infringement within a business, the claims for an injunction and for removal also lie against the owner. An injunction means the breach must not happen again. Removal means an ongoing breach has to end, for example by correcting the post. The provision doesn’t mention damages. Those fall under § 9 UWG and require intent or negligence.

§ 8(2) isn’t the only route. A business can also be liable itself as perpetrator or participant, or for breaching a duty of care. In case I ZR 27/22 the appeal court had found neither, and the BGH saw no legal error in that.

A company was hit directly in urgent proceedings before the Higher Regional Court of Celle. In 2017 the court barred it from advertising cosmetics through a third party presenting herself as a private individual without making the commercial purpose clear (13 U 53/17). It was undisputed that the influencer was paid for the post, and a “#ad” at the end, the second of six hashtags, was not enough for the court. It based the ban on § 8(1) UWG and did not address liability for agents under § 8(2). The order threatened a fine of up to €250,000 for each future breach, the statutory maximum under § 890(1) ZPO.

The BGH summed up the test in its ruling “Haftung für Affiliates” (liability for affiliates) of 26 January 2023 (I ZR 27/22). The main reason for attribution, the court said, is that the agent extends the owner’s business and that the owner controls the area of risk to some degree. Here the court builds on its “Partnerprogramm” (affiliate programme) ruling of 7 October 2009 (I ZR 109/06). An agent can also be an independent business, such as an advertising agency. How the parties have set up their legal relationship makes no difference.

Two points from the ruling hit brands directly. What counts is not the influence you secured, but the influence you could and should have secured. And you may be liable even for breaches committed without your knowledge and against your will. A ban in the contract, or deliberately giving no instructions, therefore doesn’t make commissioned advertising the creator’s problem alone.

The affiliate case went the other way. A mattress maker had sued companies behind a large online marketplace, including the operator of its affiliate programme. On a website that looked like an editorial magazine about sleep and mattresses, an affiliate had not made the commercial purpose clear. The BGH did not question that this was a breach. But it found no extension of the programme operator’s business. An advertising agency, by contrast, will usually count as an agent, even if it keeps some leeway on content, timing and scope. What spoke against attribution for the affiliate:

• Affiliates signed up on their own initiative, without any prior check.
• They decided independently, free of instructions, if they linked at all and how.
• There were no rules on the website’s design or the extent of linking, and no exclusivity.
• The website was the affiliate’s own product, with content shaped at its own discretion.
• The right to terminate and a possible contractual penalty were not enough to amount to control.

The last column shows a direction, not a result. Courts decide on the facts of each case. An affiliate programme can move closer to a collaboration if you give individual creators instructions: dates, messages, approvals. And a collaboration doesn’t become an affiliate programme just because you pay per sale.

An example: you book a creator for a reel, set the product, two key messages and the date, and pay a fee. If the label is missing, the BGH test suggests the breach can be attributed to your brand too, even if the contract required the label. If the same creator links your product unprompted through an open affiliate programme, the case sits closer to I ZR 27/22.

The table also shows a trade-off. The less you specify, the further you are from attribution, but the less say you have over what is said about your product, or if anything is said at all. In the affiliate case the BGH itself names what that can include: a link in a critical review, or a pointer to a cheaper offer from a competitor.

An affiliate programme on its own therefore doesn’t produce posts. Many partners who sign up never become active, and the creators you most want rarely post without a reason. The real task is to get many creators active at the same time and then see who sells. As soon as you book creators, back them with a campaign budget or give them instructions, you move up the table, and labelling belongs in your plan.

Before starting court proceedings, those entitled to claim are expected to send an Abmahnung (formal warning letter) and give you the chance to settle with a cease-and-desist undertaking backed by a reasonable contractual penalty (§ 13(1) UWG). If the warning is justified and contains the details § 13(2) UWG requires, the sender can claim the necessary costs from you (§ 13(3) UWG), with the exceptions set out in § 13(4) UWG. Under § 8(3) UWG, those entitled to claim include:

• competitors who sell or buy goods or services to a not insignificant extent and not just occasionally
• trade associations on the list under § 8b UWG, if a substantial number of their members sell the same or similar goods or services on the same market and the breach affects their members’ interests
• qualified consumer associations
• chambers of commerce and industry and crafts organisations

1. Place every collaboration in the table before it starts. For anything you book, give instructions on or fund with a campaign budget, plan as if you had to answer for the labelling as well.
2. Write the exact label into the contract and the brief. According to the Medienanstalten (German state media authorities): for images and text, “Werbung” or “Anzeige” (German for advertisement) clearly legible at the start of the post; for videos where your product plays the main role, a “Werbung” overlay for the whole video or advertising sequence; for affiliate links, an asterisk with an explanation right next to the link. Abbreviations such as “ad” are not enough.
3. For booked collaborations, the BGH looks at the influence you could and should have secured. So use it: a draft before publication, a right to have it corrected and a short deadline for doing so. Your agency contract should say that the agency sets and checks the labelling for the creators it books.
4. Check every published post promptly, including each individual story slide, and save a dated screenshot.
5. If the label is missing, ask for a correction straight away and note when you asked and when it was made. If it happens again, leave that creator out of the next campaign.
6. Agree in the contract who bears warning-letter costs between you if the creator leaves out the agreed label. It won’t protect you against third parties; it only settles who pays internally.
7. If an Abmahnung arrives, have a lawyer review it before the deadline. A cease-and-desist undertaking commits you to refraining from the breach in future, backed by a contractual penalty (§ 13(1) UWG).

wyrld Boost puts your budget behind creators who feature your products, starting today. You set the products, the period and the KPIs that determine the payout, for example sales, clicks, watch time or reach, and you decide in which shops people buy. Many creators can join at the same time, in their own videos and in their storefronts. Taking part is each creator’s own decision, so how many will join isn’t fixed in advance. Because you set the products, period and KPIs, Boost sits in the table above as a campaign with many creators, not as an open affiliate programme.

Boost campaign videos are advertising. Under their contract with wyrld, labelling them is the creators’ responsibility (creator terms, § 6). Towards third parties that changes nothing about the classification in the table, and the steps above apply to Boost posts just the same. With the brand and shop subscription you see every day which creators feature your products and who actually sells, and wyrld sets up your own terms with those creators. That also tells you whose labelling to keep an eye on.

Even if creators can usually pick your products on wyrld already, through your affiliate programme with one of the large networks, that alone doesn’t bring any posts. You connect through your existing affiliate programme or directly, and you pay for results. Prices for the subscription and Boost are on request. Connection, subscription or Boost: what fits your brand is something to talk through with wyrld.