Hanover/Hamburg, 30.09.24 — The law firm activelaw Offenhausen.Wolter PartmbB has successfully obtained a preliminary injunction for an influencer it represents before the Hamburg Higher Regional Court. This involved the illegal use of her image by her former management agency.
The influencer had terminated her contract without notice in accordance with Section 627 BGB. Management rejected the dismissal and gave the impression that they continued to represent her, including by using her photo on the agency homepage. With the help of Dr. Sven Dierkes, an expert in media law, the influencer successfully opposed this before the Hanseatic Higher Regional Court.
In its order of 20.09.2024 (7 W 110/24), the court found that the impression of continuing to be represented by management violates the influencer's personal rights. The contract was effectively terminated by the termination without notice.
As part of the decision, the court stated that exclusive agency contracts, i.e. contracts that focus on mediation and assistance with advertising campaigns, placements and contract negotiations, can also be terminated without notice in accordance with Section 627 BGB. Section 627 BGB regulates the immediate termination of service contracts based on personal trust. The Act allows both parties to terminate such a contract at any time without giving reasons.
In addition, the court clarified that the exclusion of the special right of termination under Section 627 BGB through clauses in the general terms and conditions violates Section 307 (1) sentence 1, paragraph 2 (BGB) and is therefore ineffective. A confirmation by the influencer under the contract that the right of termination was excluded after detailed discussion between the parties would not change that.
Attorney Dr. Sven Dierkes explains:
The decision of the Hanseatic Higher Regional Court is particularly noteworthy in terms of two aspects:
In our understanding, the court does not base its decision on the character of the contract in dispute as a management contract, but on its character as an agency contract. In contrast to management contracts, agency contracts focus more on acquiring and arranging commitments than on advising on career development. However, there has only been occasional case law on the question of whether agency contracts can also be terminated in accordance with Section 627 BGB.
It should also be emphasized that the Higher Regional Court, to the bad nature of many agencies, refused to bring about an exclusion from Section 627 BGB through a lump sum confirmation from the client of the exclusion at the end or under the contract. That is absolutely logical. Because trying to exclude terms and conditions through terms and conditions seems daring per se.
Nevertheless, it should be noted that the desire of many agencies to exclude Section 627 BGB is entirely understandable. Because cooperation between agency and client usually only makes sense and pays off for the agency when it lasts for a certain period of time. In our experience, however, the agency's legitimate interests can be better resolved by agreeing transparent post-contractual participations than a convulsive attempt to retain artists who want to break away from the agency.
Notwithstanding this, the agency and client are of course free to actually negotiate an exclusion from Section 627 BGB individually and openly. It should also be pointed out here that there are courts which consider a blanket exclusion from Section 627 BGB to be possible, with good reasons, in any case if no post-contractual commission has been agreed. How useful that is may be seen. Because, as is well known, travelers shouldn't be stopped.
About activelaw:
activelaw is a law firm based in Hanover, specializing in business law. With a team of experienced lawyers, the firm primarily advises companies in the areas of commercial and corporate law, real estate law and media law. In addition to numerous medium-sized companies from Hanover and Lower Saxony, activelaw also supports media professionals with legal issues relating to contract drafting, media and copyright law.
About Dr. Sven Dierkes:
Dr. Sven Dierkes is an experienced media lawyer who represents numerous well-known influencers in Germany. With more than 20 years of experience in media law, he is a recognized figure in the industry. His career took him to activelaw Offenhausen.Wolter PartmbB in 2019. His focus is on media and entertainment law, press law, publishing law, event law, and trademark and trademark law.
