Influencer agreements and marketing law

Influencer marketing has grown into a large industry in Denmark, and with it the requirements for lawful marketing and clear agreements have followed. Businesses and influencers that do not comply with the Marketing Practices Act and the Consumer Ombudsman's guidelines risk sanctions, bad publicity and damaged relationships.

This guide explains what the Marketing Practices Act requires of influencer collaborations, which pitfalls to avoid, and what a good influencer contract contains.

What is influencer marketing?

Influencer marketing is a form of paid marketing where a business enters into an agreement with a person who has a following on social media (Instagram, TikTok, YouTube, blogs and more) to mention, recommend or demonstrate the business's products or services.

Influencers are typically divided into:

• Nano-influencers: under 10,000 followers, often a high engagement rate
• Micro-influencers: 10,000 to 100,000 followers
• Macro-influencers: 100,000 to 1,000,000 followers
• Mega-influencers and celebrities: over 1,000,000 followers

The Marketing Practices Act and the Consumer Ombudsman's guidelines

The central requirement: advertising disclosure

Under the Marketing Practices Act, advertising must appear so that it is clearly perceived as advertising (the recognisability requirement, section 6). If an influencer receives money, free products, discounts, trips, experiences or any other form of payment to mention a brand, it is advertising and must be clearly labelled.

It is not only cash payment that counts. Any form of commercial collaboration requires advertising disclosure, including:

• Free products sent to the influencer
• Affiliate agreements with commission
• Trips and events sponsored by the brand
• Gift cards and discount codes
• Exclusive access

What is sufficient advertising disclosure?

Under the Consumer Ombudsman's guidelines, advertising disclosure must:

1. Appear clearly and unambiguously, not hidden in a mass of hashtags
2. Appear from the start of the content, not only at the end of a long video
3. Use the correct Danish terms: "Reklame", "Annonce" or "Betalt samarbejde"

Accepted wordings: "Reklame", "Annonce", "Betalt samarbejde".

Insufficient wordings: English terms like "Ad" or "#sponsored", vague hashtags like "#gifted" or "#collab", or one "reklame" hidden among many hashtags.

Platform-specific requirements

Instagram: use Instagram's "Paid partnership" feature, and also state in the caption that it is advertising. For Stories it must be clear from the start.

TikTok: use TikTok's function for commercial content, and state "Reklame" or "Annonce" at the start of the video.

YouTube: state it at the start of the video, use YouTube's paid-promotion setting, and write it in the video description.

Blogs and websites: state it clearly at the start of the article.

Consequences of missing advertising disclosure

If a business or influencer breaches the Marketing Practices Act, the consequences can be serious. The Consumer Ombudsman can issue orders and file police reports, and the courts can impose fines. Added to this is the negative publicity and loss of consumer trust. Both the business and the influencer can be held responsible. The Consumer Ombudsman actively supervises influencer marketing and has sharpened its efforts in recent years.

What should an influencer contract contain?

A professional influencer contract protects both parties and creates clear expectations about deliverables, payment, advertising disclosure and rights.

1. The parties' identity

The business's name, CVR number and contact person, and the influencer's full name, CVR number (if the influencer is self-employed) and any management agency.

2. The scope of the collaboration

A precise description of the deliverables: the number of posts, Stories, videos or blog posts, the platforms, the timetable and any exclusivity period.

Example: "The influencer delivers 2 Instagram posts, 4 Instagram Stories and 1 YouTube video in the period 1 June to 30 June."

3. Content and approval process

• Must the business pre-approve the content, and what is the deadline for feedback?
• The influencer should keep their authentic voice, so the content does not become too controlled.
• A statement of talking points, product descriptions and any mandatory links.

Important: the contract should establish that it is the influencer's responsibility to ensure correct advertising disclosure, and state the specific requirements.

4. Payment and terms

• Fee: a one-off payment, a fee per post or an ongoing retainer
• Products, services or trips included as part of the payment
• Affiliate commission, if relevant
• The payment date and method

Tax and VAT: payment, including free products and trips, is as a rule taxable income for the influencer. The contract should govern the VAT handling, and the influencer should obtain their own tax advice.

5. Advertising disclosure (a mandatory clause)

Include an express clause that obliges the influencer to comply with the Marketing Practices Act:

"The influencer is obliged to label all content created under this agreement as 'Reklame' or 'Annonce' in accordance with the Marketing Practices Act and the Consumer Ombudsman's guidelines. The labelling must appear clearly and from the start of the content."

6. Rights to the content

Who owns the content produced?

• The influencer as a rule holds the copyright to the content.
• The business should secure a licence to use the content and define clearly which platforms the licence covers, how long it applies, and whether the business may use the content in paid advertising campaigns or print material.

Tip: many conflicts arise because the business uses influencer content in paid ads without having a licence for it.

7. Exclusivity

Is the influencer obliged not to work with competitors for a period? If so, state the duration, which competitors are covered and any increased payment for the exclusivity.

8. Confidentiality

The terms of the collaboration, payments and not-yet-published product information are typically confidential. A confidentiality clause ensures the information is not shared with others.

9. Termination and conduct (morality clause)

A morality clause gives the business the right to terminate the contract if the influencer's conduct conflicts with the business's values or damages its reputation. Define which actions trigger the clause, the notice period and any duty to repay the fee. Such clauses should be balanced against respect for the influencer's freedom of expression and should not be so broad that they in reality bar the influencer from speaking.

10. Performance requirements and reporting

Many businesses want insight into performance data such as views, reach and engagement rate. State a deadline for reporting, and address what happens if the results are markedly below expectations.

Children and young people as influencers

Special considerations apply if an influencer is a minor (under 18):

• Parents or guardians must take part in and sign the contract.
• Special rules apply to the work of young people under the working-environment rules.
• Advertising disclosure is extra important when the content can reach children, who are a particularly vulnerable group.

Marketing directed at children and young people must, under section 11 of the Marketing Practices Act, be designed with special regard for their natural credulity and lack of experience, and it must not contain direct purchase exhortations aimed at children. There is, however, no general ban in Danish law on all advertising directed at children under a certain age.

Affiliate marketing and cookie rules

Do you run an affiliate program where influencers earn commission via unique links?

• Affiliate links are advertising and must be labelled as such.
• Tracking via affiliate cookies requires the user's consent under the cookie rules.
• Payments to foreign affiliates require special tax attention.

The most common mistakes

1. No written contract, so the parties remember the agreement differently
2. Unclear responsibility for advertising disclosure, where each party assumes the other manages it
3. No rights clause, so the business uses the content in ads without a licence
4. Too broad a morality clause that in reality limits the influencer's freedom of expression
5. No definition of exclusivity, so it is unclear who is "a competitor"
6. Forgotten taxation of affiliate income

Paid media and whitelisting

A newer trend is whitelisting, where the business pays to boost the influencer's content as a paid ad from the influencer's account.

Consent: a whitelisting setup gives the business access to run ads from the influencer's account. This requires the influencer's express consent and a clear agreement on what the business may and may not do.

Advertising disclosure: content boosted as a paid ad must still be labelled as advertising, now with the platform's own marking for a paid ad and possibly "Reklame" in the text.

Include whitelisting as a separate item in the agreement with a clear definition of the campaign period and any limitations.

Product testing and reviews (product seeding)

Do you send products to an influencer for testing without requiring positive coverage and without controlling the content? Here there is a nuance in the Consumer Ombudsman's guidelines:

• If the influencer receives products free with an expectation of coverage, it is advertising and must be labelled.
• If the influencer receives products without such an expectation and mentions them of their own accord, it is as a rule editorial coverage, not advertising.

In practice the line is difficult, and sending products as part of a PR campaign typically creates an expectation of coverage and therefore requires advertising disclosure.

Recommendation: label as advertising if you have actively sent the product with a view to exposure.

The influencer agreement in an agency setup

Many larger brands work through influencer agencies. Be aware of:

• Who is the contracting party: the agency or the influencer?
• Who is liable if the influencer does not deliver?
• What share of the fee does the agency keep?
• Does the agency require exclusivity on the influencer's account?

Make sure that, as the advertiser, you can communicate with the influencer about the disclosure requirements. Responsibility for lawful marketing lies with the advertiser, not only with the agency.

Conclusion

A good influencer contract ensures clear deliverables, correct advertising disclosure, control over the rights to the content and a fair allocation of responsibility. Advertising disclosure is not negotiable: if the influencer receives payment, the content must be labelled clearly and in Danish as advertising.

---

The content of this article is for guidance only and does not constitute legal advice. Consult a lawyer for advice on your specific influencer agreements and marketing.