Influencer Marketing: Legal Framework and Strategic Implementation
At first glance, it seems far-fetched that an influencer could legally qualify as a commercial agent and be entitled to claims under the provisions on commercial agents (Sections 84 et seq. of the German Commercial Code (HGB)). However, a second look shows that enterprises wishing to make use of the reach of influencers in the context of social media should take a few things into account in order to avoid any undesirable legal consequences. Attention when using social media marketing: the good old Commercial Code also applies there!
The Legal Status of Influencers
To determine if legal regulations apply, one must ask: What characterizes a commercial agent? A commercial agent is “a self-employed intermediary who has continuing authority to negotiate transactions on behalf of another entrepreneur (the “principal”) or to conclude transactions in the latter’s name.“ (Section 84 para. 1 sentence 1 HGB).
The question of whether and under what conditions an influencer can be a commercial agent depends on several factors. Firstly, there must be a permanent entrustment, i.e. whether the influencer works for the company not only once, but at least for a certain or determinable period of time. Secondly, the influencer’s activity must consist of brokering business for the company, whereby it should be sufficient for the assumption of mediation by a commercial agent that the influencer’s contribution is co-causative for the transaction concluded between the entrepreneur and the customer.
To better understand the legal distinctions, the following table summarizes when an influencer's activity qualifies as intermediation versus mere product placement:
| Scenario | Legal Qualification | Key Characteristics |
|---|---|---|
| Pure Product Placement | Unlikely to be an Intermediary | Followers cannot directly purchase the product; remuneration is based on views/followers. |
| Sales-Promoting Elements | Suggests Brokerage/Intermediation | Use of discount codes or affiliate links; remuneration is based on revenue from the product. |
| Independent Content Creation | Unlikely to be an Intermediary | Influencer publishes own content without being directly commissioned to increase platform users. |
Strategies for Effective Deployment of Influencers
Many companies have realized that they can use platforms such as TikTok, Instagram, YouTube and others to generate awareness for their products or services among customer groups that they would not be able to reach via traditional marketing channels. This is where influencers come into play, who – as their name suggests – can influence other people in their (purchasing) behavior. Ideally, the influence goes so far that followers feel encouraged to buy the product advertised by the influencer.
Identifying and Reaching Out to Partners
For identifying influencers, it is recommended to use free platforms. Facebook has a tool called Brand Collabs Manager, while the equivalent TikTok tool is called the Creator Marketplace. Apart from making sure influencers fit your brand, demographic, and buyer persona, you should emphasize the importance of connecting with good video content creators.
When you are ready for outreach, reach out to them over direct messages on the platform you’re looking to activate them on. A recommended approach for initial outreach is as follows:
- “Hey [influencer’s name], we think you’re a great brand fit."
- "We absolutely love the content you consistently put out."
- "We think you’d love our product and we want to send it to you, no strings attached."
This means you have no expectation of them to post whatsoever. They act of their own free will under no contractual obligation. They are genuine product adopters, which means they will post authentic content if they like your stuff.
Content Usage and Paid Advertising
After influencers make posts about your products, you want to make sure you get usage rights on the content they posted. You can use social listening tools, such as MightyScout, so that you don’t have to scour the internet for creators’ posts 24/7. You can just plug influencer profiles into the platform and all of their content mentioning your brand gets collected even if they don’t hashtag or tag you.
Furthermore, consider using influencer content for paid ads. If you’re looking for organic traffic, activate influencers on TikTok. But if you want to use a paid channel, Facebook is far more sophisticated and has greater conversion rates. Repurpose the content into Facebook ads to remove human bias, as only the top-performing content will get any ad spend.
Influencer Marketing in Commercial Real Estate (CRE)
Influencer marketing, a strategy traditionally associated with consumer goods, is making significant inroads into the commercial real estate (CRE) sector. The concept involves partnering with individuals who have a significant digital following and can sway the decisions of potential clients and investors. CRE professionals can collaborate with influencers to enhance property visibility, brand awareness, and ultimately, investment opportunities. This can include Utilizing influencers’ social media platforms for property promotions, live tours, and Q&A sessions to engage their audience.
