The employee as influencer
Influencer marketing is a form of brand communication in which companies make targeted use of people who post advertising and image-enhancing content from their personal accounts on social media (such as Instagram, Facebook, YouTube, LinkedIn), exerting influence on their followers. From an organisation’s point of view, it can also be interesting to recruit your own employees for this purpose. Depending on the company and the influencer, the focus can be on different objectives: advertising for specific products and services, general image cultivation or even employer branding and recruiting.
One contract model v separation mode
In principle, two different models can be considered for formalising a relationship with an employee influencer. In the one contract model, there is only one contractual relationship, meaning that the influencer activities are also carried out within the framework of the employment relationship, which may be amended by a supplementary agreement. Under the ‘separation’ model, on the other hand, a new contractual relationship (such as a framework agreement for work or a ‘free’ service contract) is established, which exists independently in parallel with the employment relationship.
The possibility of establishing a second legal relationship between employer and employee which is not governed by employment law is recognised in case law (BAG v. 27 June 2017 – 9 AZR 851/16).
The advantages of the separation model
From the employer’s point of view, the separation model has advantages in terms of the distribution of liability: If the influencer causes damage (e.g. in the context of s8 (2) of the Unfair Competition Act), the organisation can demand full recourse from the influencer under the separation model (depending on the contractual arrangements agreed).
In contrast, the mandatory principles of limited employee liability (internal compensation for damages) will apply under the one contract model. The consequence of these is that the influencer can often not, or only to a limited extent, be held liable for negligent violations. If the influencer, for his or her part, is subject to a damages claim from a third party, s/he may, if necessary, demand indemnification from his or her employer based on the principle of limited employee liability,
Under the separation model, the protective provisions of employee law do not apply to the separate second legal relationship that exists in parallel to the employment relationship. This can therefore easily be terminated or limited in time without the requirements of the Dismissal Protection Act or the Part-Time and Fixed-Term Act having to be fulfilled.
The separation model as a potential compliance trap?
However, the separation model can become a compliance trap. A prerequisite of the separation model is always that there is a clear separation between employee activities and influencer activities. Within the scope of influencer activities, the influencer must not be integrated into the employer’s organisation and must not be subject to any right to give instructions under the employment contract. If a clean separation between the two roles is not achieved (this always depends not only on the wording of the contract but also, and most importantly, on what actually happens in practice), the advantages described above in relation to liability will no longer apply. Moreover, the ‘classic’ risks of bogus self-employment, ranging from the subsequent payment of social security contributions (including contributions otherwise to be borne by the employee) by the employer to consequences under criminal law (s266a of the Criminal Code), will apply in this situation.
Against this background, the one contract model has the advantage that the employer can exert much greater influence on the employee-influencer’s activities without the corresponding compliance risks, even if employers will often make cautious use of this (in order not to jeopardise the authentic effect of social media contributions).
In the separation model, a contract is concluded for influencer activities. This should, in principle, have the same content as the contract of an ‘external’ influencer. The contract will also contain a separate remuneration provision (e.g. remuneration per contribution or based on key metrics such as ‘likes’). The employment contract, on the other hand, will not be changed (at most, working hours may be reduced in order to create time for the influencer’s activities).
In the standard model, too, the employee’s consent is a prerequisite for using him or her as an influencer. An employee cannot regularly be instructed to make a personal social media account available for the employer’s purposes against his or her will (irrespective of the fact that ‘forced’ influencer activity might well be less effective). In most cases the conclusion of a supplementary agreement to the employment contract is recommended.
It is important, among other things, to ensure through careful drafting of the contract that the employer’s right of direction is not restricted and that the employee’s duties as an influencer can also be withdrawn. In addition, the agreement should refer to social media guidelines or information sheets on the legal framework (e.g. on clear labelling of advertising). See here for more information on issues around the use of employee influencers.