Is Affiliate Marketing Legal in Germany? Disclosure Rules, "werbung" Labels, Penalties & Case Law

Is affiliate marketing legal in Germany? Yes, but every affiliate link is advertising in the eyes of German law, and it must be disclosed clearly and immediately to consumers. The Gesetz gegen den unlauteren Wettbewerb (UWG) prohibits hidden advertising (Schleichwerbung), and the Bundesgerichtshof confirmed in its landmark influencer rulings of 9 September 2021 (cases I ZR 90/20, I ZR 125/20 and I ZR 126/20) that social-media posts containing commercial links require unambiguous labelling. With the European Commission’s Influencer Legal Hub now coordinating cross-border enforcement and Germany’s state media authorities issuing increasingly specific guidance, the compliance risk for brands, publishers and creators operating with German audiences has never been higher.

This guide covers the full legal framework, key court decisions, acceptable German labelling (“Werbung”, “Anzeige”), platform-specific disclosure examples, the penalty landscape, and ready-to-use contract clauses and checklists for compliance teams.

What you will learn:

• Which German and EU laws apply to affiliate marketing and when disclosure is mandatory.
• How to label affiliate content correctly, exact German phrasing, placement rules and platform-by-platform examples.
• What penalties you face for non-compliance and how to build disclosure requirements into contracts and workflows.

Legal Status: Affiliate Marketing in Germany

Affiliate marketing is a lawful commercial activity in Germany. No licence or special permit is required to participate in an affiliate programme. However, the moment a content creator, publisher or website operator earns a commission, or receives any material benefit, from linking to a product or service, that content crosses the line from editorial into advertising. German law then imposes strict disclosure obligations. The principal statutes governing these obligations are the UWG and the Telekommunikation-Telemedien-Datenschutz-Gesetz (TTDSG), supported at the EU level by consumer-protection directives and the Digital Services Act framework.

UWG: Advertising Versus Editorial Content

The UWG is the core statute for German influencer marketing law disclosure. It prohibits commercial practices that are misleading by omission or that fail to reveal their commercial intent. Under the UWG, any content that promotes goods or services in exchange for compensation, including affiliate commissions, must be identifiable as advertising by the average consumer at first glance. The Bundesgerichtshof has repeatedly applied this principle to social-media posts, holding in I ZR 125/20 (9 September 2021) that an Instagram post containing product tags linked to a brand’s commercial page constituted advertising requiring labelling where the influencer received counter-performance.

The key legal test is whether the content serves a commercial purpose and whether a reasonable consumer can recognise that purpose without further investigation.

TTDSG and Tracking: When Consent Matters

Beyond disclosure, German law governs the technical side of affiliate marketing. The TTDSG requires end-user consent before storing or accessing information on a user’s device, including affiliate tracking cookies and pixels. If an affiliate programme uses cookie-based attribution, the publisher must obtain prior, informed consent through a compliant consent-management platform. This requirement applies regardless of whether the underlying content is correctly labelled as advertising, making it a separate compliance layer that publishers and brands must address in parallel.

BGH Case Law and Enforcement Trends

The Bundesgerichtshof’s influencer decisions of 9 September 2021 remain the most authoritative judicial guidance on when affiliate and promotional content must be labelled as advertising. In three related cases decided on the same day, the BGH established a clear analytical framework that industry observers expect will shape enforcement for years to come.

The court’s legal test centres on three questions: Does the content serve a commercial purpose? Has the creator received counter-performance (payment, free products, commissions or other material benefits)? And would the average recipient recognise the commercial character of the content without a disclosure label? Where all three elements are present, disclosure is mandatory. Where only some elements are present, for example, a creator recommends a product they purchased themselves with no affiliate link, the BGH held that labelling may not be required, but the absence of any commercial nexus must be genuine.

Alongside court-led enforcement, Germany’s state media authorities (Landesmedienanstalten) have intensified regulatory oversight. The Landesanstalt für Medien NRW publishes detailed guidance on sponsored influencer content, specifying acceptable label formats and placement rules. At the EU level, the European Commission’s Influencer Legal Hub and coordinated enforcement sweeps under the Consumer Protection Cooperation (CPC) Network have flagged non-compliant influencer posts across member states, reinforcing the message that hidden advertising penalties in Germany are part of a broader European enforcement trend.

When Does an Affiliate Link Count as Advertising?

Understanding precisely when an affiliate link triggers the duty to disclose is essential for compliance. The answer depends on the nature of the relationship between the content creator and the advertised product or service. Three common scenarios illustrate where the line falls.

Paid Partnerships and Direct Compensation

Where a brand pays a creator directly, whether through a flat fee, cost-per-click model or revenue share, to produce content featuring or linking to a product, the content is unambiguously advertising. Disclosure must appear at the very beginning of the post, video or article. No exception applies, regardless of whether the creator also genuinely likes the product.

Affiliate Links and Indirect Compensation

Affiliate programmes typically pay commissions only when a user clicks a tracked link and completes a purchase or action. Even though the compensation is indirect and contingent, it creates a commercial incentive that German law treats as sufficient to classify the content as advertising. A blog post reviewing a camera and including an Amazon Associates link, for example, must disclose the affiliate relationship near the top of the page. The labelling requirements for influencer marketing in Germany apply equally to these indirect arrangements.

Free Products and Gifting

When a creator receives a product free of charge, even without a contractual obligation to post about it, the content may still qualify as advertising if the free product influenced the recommendation. The BGH’s rulings indicate that the decisive factor is whether a material benefit affected the content’s commercial character. Industry observers expect that any gifted product combined with an affiliate link will almost always require disclosure.

In summary, the factors that convert content into advertising under German law are:

• Payment of any kind (fee, commission, revenue share).
• Receipt of free goods, services or other material benefits.
• Inclusion of a tracked affiliate link generating potential commission.
• A call-to-action directing consumers to a commercial transaction.

How to Disclose: Exact Wording, Placement and Platform Examples

Knowing that disclosure is required is only half the battle. The Landesanstalt für Medien NRW’s guidance on sponsored influencer content specifies how to disclose influencer ads in Germany online, and ambiguous labels are a common source of non-compliance. Below are the rules on phrasing, placement and platform-specific implementation that brands and creators should follow.

Phrasing: German Labels Versus English Hashtags

German regulator guidance is clear: the disclosure must be in a language the target audience understands and must use unambiguous terminology. For a German-speaking audience, the recommended terms are “Werbung” (advertising) or “Anzeige” (advertisement). Extended formulations such as “Enthält Werbung” (contains advertising) or “Bezahlte Partnerschaft mit [Brand]” (paid partnership with [Brand]) are also acceptable. What is not sufficient, and what regulators have consistently flagged, is the use of English-only hashtags such as “#ad” or “#sponsored” when addressing German consumers. These terms are considered insufficiently clear for the average German-speaking recipient. Similarly, hashtags buried at the end of a long caption or hidden among dozens of other tags do not meet the visibility standard.

The Werbung or Anzeige label used in influencer content in Germany must be immediately visible.

Placement: Visibility Rules

Placement is as important as phrasing. The disclosure must be the first thing a consumer sees, not an afterthought. On Instagram, this means placing “Werbung” or “Anzeige” at the very beginning of the caption, before any other text, so that it is visible without tapping “more”. On Instagram Stories, an on-screen text overlay reading “Werbung” should be positioned prominently (not in small, low-contrast text at the edge of the screen). On TikTok, an on-screen text label must appear within the first seconds of the video and remain visible for a reasonable duration.

On YouTube, the disclosure should appear both in the video itself (as a text overlay or verbal statement at the start) and in the description box above the fold. For blog posts and affiliate websites, a clear statement such as “Dieser Artikel enthält Affiliate-Links / Werbung” should appear near the top of the article, ideally before the first affiliate link. The European Commission’s Influencer Legal Hub reinforces these placement principles at the EU level.

Platform Quick-Reference Table

Penalties, Enforcement and Common Claims

Hidden advertising penalties in Germany are not theoretical. The UWG provides a robust enforcement mechanism, and both competitors and consumer-protection bodies actively bring claims. Understanding who can sue and what sanctions apply is critical for risk management.

Who Can Sue or Invoke the UWG?

Under the UWG, standing to bring a claim is not limited to the affected consumer. Competitors, including rival brands and other creators, can seek injunctive relief against non-compliant advertising. Qualified consumer-protection associations (Verbraucherschutzverbände) and trade associations with standing under the UWG can also take action. The state media authorities (Landesmedienanstalten) can issue formal complaints and sanctions for violations of media-law advertising requirements. At the EU level, the European Commission coordinates enforcement actions through the CPC Network, which has conducted targeted sweeps of influencer content across member states.

Typical Sanction Scenarios and Mitigation

The most common enforcement action is a cease-and-desist letter (Abmahnung), typically demanding that the creator or brand sign an undertaking to cease the unlabelled advertising and pay the claimant’s legal costs. If the undertaking is refused, the claimant can seek a court injunction. Repeat violations following an injunction can trigger contractual penalties (Vertragsstrafen) or judicially imposed fines. Beyond financial sanctions, non-compliance carries significant reputational risk, both for the creator and for the brand whose product was promoted without disclosure. The likely practical effect of the current enforcement climate is that proactive compliance is far less costly than reactive litigation.

Practical Compliance Checklist and Contract Clauses

For agencies, brands and creators managing affiliate marketing in Germany, the following pre-publish checklist and model contract language translate legal requirements into operational steps.

Pre-publish compliance checklist:

1. Confirm whether the content involves any form of compensation (commission, payment, free product, gifted service).
2. If yes, add a clear German disclosure label, “Werbung” or “Anzeige”, at the very beginning of the post, video or article.
3. Verify that the label is visible without user interaction (no “click more”, no scrolling, no small-print placement).
4. Check that any affiliate tracking technology (cookies, pixels) is covered by a compliant consent-management platform under the TTDSG.
5. Screenshot the published content with the disclosure visible and archive it with a timestamp.
6. Review the content against the Landesanstalt für Medien NRW guidance to confirm platform-specific requirements are met.
7. Retain all documentation (contracts, proof of disclosure, consent records) for a minimum of three years.

Sample contract clause, affiliate disclosure obligation:

“The Creator shall clearly and prominently label all content containing affiliate links or other commercial references as advertising (‘Werbung’ or ‘Anzeige’) in accordance with the UWG and applicable guidance issued by the Landesmedienanstalten. The label must appear at the very beginning of any caption, description or article text and must be visible to the consumer without further interaction. The Creator shall provide the Brand with timestamped screenshots of each published post as proof of compliance within 48 hours of publication. The Creator shall indemnify the Brand against any claims, costs or penalties arising from a failure to comply with this clause.”

Disclosure Obligations by Entity Type

Tracking, Cookies and TTDSG Consent for Affiliate Links

Affiliate programmes rely on tracking technologies, typically cookies, URL parameters or tracking pixels, to attribute conversions and calculate commissions. Under the TTDSG, storing information on or accessing information from a user’s terminal equipment requires the user’s prior, informed consent unless the tracking is strictly necessary to provide a service the user has explicitly requested. Affiliate tracking cookies do not fall within this exception; they serve a commercial attribution purpose and therefore require consent.

In practice, this means that publishers and creators using affiliate links in Germany must ensure that their website or landing page deploys a consent-management platform that specifically covers affiliate tracking. Consent must be granular, bundling affiliate cookies with essential cookies in a single “accept all” prompt does not satisfy the TTDSG’s requirements. Publishers should also retain consent records as evidence of compliance, particularly given that data-protection authorities can audit consent practices independently of any advertising-disclosure investigation. Early indications suggest that regulators are increasingly treating cookie-consent failures and disclosure failures as related compliance issues, raising the stakes for affiliate publishers who neglect either obligation.

Conclusion and Next Steps

Affiliate marketing is legal in Germany, but the compliance obligations are precise and actively enforced. Every affiliate link is advertising, every disclosure must use clear German terminology such as “Werbung” or “Anzeige”, and every tracking cookie must be covered by TTDSG-compliant consent. The BGH’s 2021 influencer rulings, reinforced by state-regulator guidance and EU-level enforcement coordination, leave little room for ambiguity. Brands, publishers and creators should audit their current disclosure practices immediately, update contracts and agency workflows using the checklist and model clauses above, and consult a qualified media and entertainment lawyer for a jurisdiction-specific compliance review. For broader legal resources on operating in Germany, Global Law Experts maintains a directory of specialists across all relevant practice areas.

Sources

1. Gesetz gegen den unlauteren Wettbewerb (UWG), Gesetze im Internet
2. TTDSG (Telekommunikation-Telemedien-Datenschutzgesetz), Gesetze im Internet
3. Bundesgerichtshof, Influencer Rulings (I ZR 125/20)
4. Landesanstalt für Medien NRW, Sponsored Influencer Content Guidance
5. European Commission, Influencer Legal Hub
6. European Parliament / EPRS, Regulating Influencer Marketing in the EU