Corporate influencers: new legal situation

Where do you draw the line between personal and professional?

Corporate influencers are employees who promote their company on social media, thereby boosting its online presence. The unique thing about these dedicated ambassadors is that they post business messages, information, and news via their personal account, which makes the content really accessible and authentic. However, this form of marketing raises some issues, particularly legally relevant ones: Do posts by corporate influencers need to be labeled as ads? What legal aspects need to be considered when navigating the line between personal and professional? Do tax-related factors also enter the equation? And are there best cases of corporate influencing that other companies can learn from?

We spoke to Christina Kufer and Corinna Schneiderbauer from the commercial law firm SKW Schwarz about what applies to corporate influencers.

Where do you draw the line between personal and professional?

Corporate influencers are employees who promote their company on social media, thereby boosting its online presence. The unique thing about these dedicated ambassadors is that they post business messages, information, and news via their personal account, which makes the content really accessible and authentic. However, this form of marketing raises some issues, particularly legally relevant ones: Do posts by corporate influencers need to be labeled as ads? What legal aspects need to be considered when navigating the line between personal and professional? Do tax-related factors also enter the equation? And are there best cases of corporate influencing that other companies can learn from?

We spoke to Christina Kufer and Corinna Schneiderbauer from the commercial law firm SKW Schwarz about what applies to corporate influencers.

What exactly are corporate influencers? Are there some famous examples?

Corinna Schneiderbauer: Corporate influencers are employees who become brand ambassadors for their employer by posting on social media about their work and company. By doing so, they complement traditional corporate communication and use their personality to help their employer reach its target groups.

However, there are numerous other examples, including IKEA, which launched a YouTube channel in 2020 to put its employees center stage. Otto, LV 1871, DATEV, Daimler, and Microsoft also benefit from employees acting as company ambassadors. Reaching more than 23,500 followers on Twitter, Magdalena Rogl has become a true corporate influencing star at Microsoft.

What is the difference between an employee’s personal posts and corporate influencer activities?

Christina Kufer: That always depends on the post in question and the characteristics of the social media channel being used. The decisive factor is whether the post is of a business nature. Content posted by employees with the primary intention of giving their employer an advantage is no longer personal (regardless of whether their profile is private or public). That would be the case, for example, if they actively promote their employer’s products on Instagram, share a new job vacancy on Twitter, or upload posts as part of an official corporate influencer program set up by their employer.

Simply sharing their own work achievements or day-to-day work experiences would be a different matter and usually wouldn’t constitute corporate influencing. And it makes no difference if the employee explicitly states that they’re posting on a personal basis, which is a frequently used tactic – a post may still be of a business nature.

What mistakes do companies typically make when using corporate influencers, and what strategies can they implement to avoid these?

Corinna Schneiderbauer: The biggest mistake that companies can make when using corporate influencers is sitting back and doing nothing. Today, every company needs to be aware that as soon as employees are active on social media and their affiliation to the company is apparent, their posts and comments will also have an impact on how its brand is perceived.

Liability risks may also arise, even if the company had no involvement. For that reason, companies must develop corporate influencer strategies to help them strike the right balance between keeping the corporate influencers in check and trusting them enough to “let go”. Aside from choosing suitable employees, selecting the right social media channels, and creating relevant content, legal security is an especially important topic. To that end, it is advisable to formulate social media guidelines and regularly offer legal training courses to teach the corporate influencers the basics of copyright, trademark law, data protection, and competition law.

What do corporate influencers and companies need to watch out for? Do contracts need to be drawn up? Do posts need to be appropriately labeled and accompanied by a legal notice? And who is actually liable in the event of legal violations?

Christina Kufer: When it comes to corporate influencers, there are a range of legal issues to be aware of – from employment law to competition law and tax law. We advise companies to conclude a written supplementary agreement with corporate influencers to stipulate important points beforehand. Official corporate influencer programs and internal social media guidelines are also helpful.

As a general rule, like other influencers, corporate influencers also have to label their posts in compliance with competition law. However, they don’t necessarily have to incorporate #ad; it’s often enough if they explicitly refer to their employer. Corporate influencers also have to provide a legal notice if they use their account for business purposes, but that could simply be in the form of the company’s address, for example.

Particularly if competition law is violated, for example in the case of uploading misleading advertising or disparaging competitors, both the corporate influencers and the company they’re representing will be liable, even if the company thoroughly briefed its corporate influencers beforehand. For copyright or trademark infringements, employers should make sure that corporate influencers release them from any liability by way of an internal arrangement. That can also be done in the form of a supplementary contract.

Do employers have the right to exercise control over the profiles of their corporate influencers? Are they also allowed to dictate how employees should present themselves on social networks?

Corinna Schneiderbauer: Employers are not allowed to control or monitor the purely personal accounts of their employees without grounds. If they suspect that a corporate influencer is behaving problematically, they may be permitted to exert control within very strict limits as an exception. On the basis of their power to issue instructions, employers are more than entitled to define specific content for posts or stipulate general rules (for example within the framework of social media guidelines or works council agreements) when a social media account is being used for company purposes. However, corporate influencers generally remain unrestricted in how they use social media for personal purposes. Employers can only intervene in exceptional cases, for example if a certain behavior is detrimental to the company’s reputation or if duties of loyalty are being violated.

Are there any tax-related aspects that are relevant to corporate influencers?

Christina Kufer: From a tax perspective, the rules applicable to regular influencers generally also apply to corporate influencers. The most important thing to consider is the exemption limits. As long as the income generated from being a corporate influencer does not exceed a certain amount, it will be exempt from tax. For a secondary line of work, the exemption limit is 410 euros in Germany. If the income exceeds 24,500 euros, it may also be subject to trade tax. Gifts and free products worth more than 10 euros are taxable as a non-cash benefit because they constitute consideration for the corporate influencer’s advertising activities.

You can learn more about the topic of corporate influencers in our guide.