Compliance Risks in Performance Marketing Contracts: Guide for Legally Secure B2B Marketing [2025]

Performance Marketing in 2025: The New Compliance Challenges

The performance marketing landscape has fundamentally changed since 2023. While in the past, tracking cookies, basic data protection, and simple advertising guidelines were the primary concerns, companies in 2025 face a significantly more complex compliance environment. According to a study by the Internet Advertising Bureau (IAB) from 2024, compliance costs for mid-sized companies in performance marketing have increased by an average of 47%.

As a B2B decision-maker, you now face the challenge of not only achieving measurable results but doing so within a strict regulatory framework. The connection between performance metrics and legal requirements has become complex – making a strategic approach all the more important.

Current Legal Frameworks and Regulatory Developments

European digital regulation has set new standards with the Digital Services Act (DSA) and the Digital Markets Act (DMA). Particularly relevant for performance marketing contracts are the expanded transparency requirements and stricter rules on algorithmic ad placement. In 2024, the German Federal Network Agency recorded a 68% increase in fines in the area of digital marketing compared to the previous year.

The most important regulatory developments with direct impact on performance marketing contracts:

• The EU AI Regulation (fully in force since January 2025): Classifies marketing algorithms into risk categories with corresponding transparency and audit obligations
• The ePrivacy Regulation (finally adopted at the end of 2024): Defines new standards for tracking and user measurement
• The Unfair Competition Act (UWG): Amended with specific rules for performance-based advertising formats
• Industry-specific special regulations: Especially in regulated industries such as finance, healthcare, and B2B industrial products

Deloitte’s “State of Digital Compliance 2025” research report shows that 73% of mid-sized B2B companies rate their compliance processes for performance marketing as “insufficiently structured.” This opens a critical gap between legal requirements and operational reality.

B2B-Specific Compliance Risks Overview

The B2B sector presents specific compliance challenges that differ from B2C scenarios. The often longer contract cycles, more complex conversion paths, and higher transaction values require special attention.

The five most common compliance risks in B2B performance marketing contracts:

1. Attribution and Performance Verification: Insufficient legal protection of performance measurement in complex B2B customer journeys
2. Lead Qualification: Legal gray area in the evaluation and compensation of leads of varying quality
3. Data Usage Across Borders: International B2B campaigns with different legal frameworks
4. Industry-Specific Advertising Restrictions: Especially in regulated B2B markets such as medical technology, chemicals, or financial services
5. Contractual Liability Distribution: Unclear responsibilities between client, agency, and other service providers

A McKinsey analysis from Q1/2025 quantifies the average financial risk from compliance violations in B2B performance marketing at 4.2% of the annual marketing budget – a significant risk factor that deserves strategic attention.

“Linking performance-based compensation with legal compliance is the balancing act that modern B2B marketers must master. Those who don’t find this balance risk not only financial losses but also reputational damage and competitive disadvantages.” – Dr. Anna Müller, Compliance Officer, German Digital Economy Association (BVDW)

Data Protection and Tracking: Legally Compliant Performance Measurement

Measuring marketing performance is at the center of every successful B2B performance marketing strategy. Yet this is where one of the biggest compliance challenges lies: How can you measure and verify results legally without violating data protection regulations?

GDPR 2.0: Current Requirements and Changes Since 2023

The GDPR has undergone several updates since its original introduction, referred to as “GDPR 2.0.” The European Data Protection Board (EDPB) published specific guidelines for performance marketing in 2024, which are now binding. The key points:

• Extended Consent Requirements: Simple cookie banner consent is no longer sufficient; instead, granular, purpose-specific consent is required for different tracking methods
• Proof of Data Minimization: Performance marketing must demonstrably operate with the minimal necessary amount of data
• Processing Record for Marketing Data: Obligation to document in detail all data processing operations in performance marketing
• Privacy by Design: Performance marketing systems must be designed with data protection compliance in mind from the outset

Particularly relevant for B2B companies: The requirements apply even when only business-related data is processed. The common misconception that B2B is less affected by GDPR has, according to a Bitkom study from Q4/2024, led to compliance gaps in 62% of mid-sized B2B companies.

International Data Protection Standards for Globally Operating B2B Companies

Global B2B campaigns face the challenge of different legal frameworks. Since the enactment of the US Federal Data Protection Act (FDPA) in 2024 and the tightening of China’s Personal Information Protection Law (PIPL), uniform global tracking is hardly legally secure anymore.

Current international standards and their relevance for performance marketing contracts:

Gartner research (2025) shows that 78% of globally operating B2B companies need to differentiate their performance marketing contracts by region to remain compliant. This regional fragmentation increases complexity and requires specific contractual arrangements.

Legally Compliant Tracking Alternatives After the End of Third-Party Cookies

With the final end of third-party cookies across all relevant browsers, the technical basis for performance measurement has fundamentally changed. Google’s Privacy Sandbox, Apple’s Privacy Framework, and alternative tracking methods must now be legally secured in performance marketing contracts.

The currently most legally secure alternatives for performance tracking in B2B:

• Server-Side Tracking: Significantly more robust against browser restrictions, but with its own compliance requirements (82% of B2B companies are already partially using it according to SimilarTech)
• First-Party Data Strategies: Building proprietary data sets with explicit user consent
• Contextual Targeting: Renaissance of context-based advertising without personal data
• Privacy-Preserving Attribution: New protocols like PARAKEET or TURTLEDOVE that enable measurement without individual identification
• Conversion API Integration: Direct interfaces between ad networks and your website

For performance marketing contracts, this means: The technical methodology must be explicitly defined and legally assessed. Forrester’s “State of Marketing Measurement 2025” study shows that 67% of B2B performance marketing contracts do not contain adequate specifications for the tracking technologies used – a significant compliance risk.

“The technical-legal convergence in the tracking area is the biggest challenge for performance marketing contracts. Companies need to be both technologically up-to-date and legally compliant simultaneously – a combination that overwhelms many.” – Prof. Dr. Thomas Weber, Chair of Digital Marketing, Technical University of Munich

Contractual Protection: The Critical Clauses for Performance Marketing Contracts

The legally secure design of performance marketing contracts is the key to risk minimization. Especially in the B2B sector, where performance campaigns often mean higher investments, precise contractual protection is crucial.

Liability Issues and Risk Transfer: Who is Responsible for Compliance Violations?

One of the most critical questions in performance marketing contracts is the distribution of compliance responsibility. The European Association of Communication Agencies (EACA) reports that liability disputes over compliance violations have increased by 79% since 2023 – a clear signal for the need for precise contractual regulations.

Core elements of legally secure liability provisions:

• Clear assignment of responsibility for various compliance areas (data protection, advertising law, industry regulation, etc.)
• Indemnification clauses with limitations that are economically viable and legally enforceable
• Escalation processes for suspected or identified compliance risks
• Insurance evidence for relevant liability risks (cyber insurance, professional liability)
• Due diligence processes for pre-contractual compliance review

Case law shows an increasing tendency to hold clients liable for compliance violations by their marketing service providers. The Higher Regional Court of Munich, in a landmark decision in November 2024 (Case No. 29 U 1896/24), ruled that companies bear a shared responsibility for data protection violations by their performance marketing agencies if they have not established adequate control mechanisms.

Performance Definition and Success Metrics: Legally Secure KPI Agreements

The core of any performance marketing contract is the definition of the performances to be achieved. However, this is also a legal breaking point: Unclear or unrealistic success criteria often lead to disputes. An analysis by the Arbitration Board for Business Disputes shows that 43% of conflicts in performance marketing contracts can be traced back to poorly defined KPIs.

Legally secure performance definitions must:

1. Clearly define measurability: Which tracking system is considered authoritative?
2. Clearly regulate attribution: How are conversions assigned to different channels?
3. Establish quality criteria: Especially qualification criteria for lead generation
4. Integrate compliance parameters: KPIs must be compatible with legal requirements
5. Provide escalation mechanisms: Procedures for non-achievement or disagreement on measurement results

A complex example is the legally secure definition of Marketing Qualified Leads (MQLs) in B2B performance contracts. The European Commission has clarified under the DSA that qualification criteria must be transparent and traceable if they are relevant to compensation.

Termination Clauses and Contract Adjustments for Regulatory Changes

In a rapidly changing regulatory environment, flexible adaptation mechanisms are crucial. According to a PwC study from 2024, 57% of all performance marketing contracts had to be adjusted within a year due to regulatory changes.

Important clauses for regulatory flexibility:

• Change-of-law clauses that define how to proceed with legal changes
• Extraordinary termination rights for severe regulatory changes
• Adaptation mechanisms for KPIs and compensation models in changed legal frameworks
• Compliance audits as a contractual right of the client
• Renegotiation clauses with defined trigger events

Particularly relevant is the contractual handling of compliance-related performance limitations. If, for example, new tracking restrictions measurably impair performance, contracts should contain clear regulations on how to deal with this situation.

“Performance marketing contracts without robust compliance adjustment clauses are like a car without shock absorbers on a bumpy regulatory road – every unevenness leads to noticeable shocks in the business relationship.” – Dr. Martin Schmidt, IT Law Specialist and Partner at Müller & Schmidt Attorneys

A practical recommendation for B2B companies: Implement a semi-annual compliance review of your performance marketing contracts. This regular review has been established as a best practice according to a benchmark analysis by the American Marketing Association and demonstrably reduces compliance risks by up to 64%.

B2B Advertising Law and Transparency Requirements in Performance Marketing

B2B companies are subject to specific advertising law requirements that differ from the B2C sector. These particularities must be considered in performance marketing contracts to minimize legal risks.

B2B vs. B2C: Differences in Advertising Law and Their Practical Implications

Contrary to a widespread assumption, strict legal requirements also apply to B2B marketing. While some relief exists, the fundamental compliance requirements remain. A study by the Institute for Competition Law from 2024 shows that 67% of B2B marketers underestimate compliance risks in advertising law.

The most important advertising law differences in B2B performance marketing:

Since the amendment of the Unfair Competition Act (UWG) with specific B2B regulations in 2024, the requirements have become further differentiated. Particularly noteworthy is the increased burden of proof for performance-related advertising claims in the B2B sector.

Labeling Requirements for Different Performance Channels

The correct labeling of advertising measures is a central compliance aspect in performance marketing. In the B2B sector, channel-specific requirements apply that must be contractually secured.

Current labeling requirements by channel (as of 2025):

• Paid Search (SEA): Clear labeling as advertising; increased requirements for target group-related clarity with B2B technical terms
• LinkedIn Ads and B2B Social Media: Transparency about targeting criteria and data usage; special requirements for profession-specific targeting
• Content Marketing & Native Advertising: Clear separation of editorial content and advertising; in B2B increased requirements for technical correctness
• Programmatic B2B Advertising: Disclosure of automated decision-making processes; additional transparency obligations since the AI Act
• Email Performance Marketing: Sender and commercial intent must be immediately recognizable

The EU Commission published specific guidelines for B2B digital marketing in October 2024, further specifying the labeling requirements. A key point: The labeling must be appropriate to the specific expertise of the respective B2B target group.

Legally Compliant Design of Landing Pages and Conversion Points

Landing pages and conversion points are at the center of performance marketing – and thus also the focus of legal requirements. Especially with B2B offers involving complex products, transparency, data protection, and consumer rights must be reconciled.

Essential legal requirements for B2B landing pages:

1. Complete legal notice according to the Telemedia Act – even on specific campaign landing pages
2. Data protection-compliant lead forms with granular consent and clear purposes of use
3. Transparent pricing for direct sales offers – increasingly relevant in the B2B sector as well
4. Verifiable fulfillment of pre-contractual information obligations, especially for Software-as-a-Service and digital B2B solutions
5. Information on follow-up costs and contract terms, which must be particularly transparent in performance marketing

An analysis by the Federation of German Consumer Organizations (vzbv) from Q1/2025 shows that 73% of examined B2B landing pages have legal deficiencies, particularly in consent design and fulfillment of pre-contractual information obligations.

For performance marketing contracts, this means: The legally compliant design of landing pages and conversion points must be explicitly regulated, including responsibilities and approval processes. A poorly designed conversion point can not only lead to legal problems but also jeopardize the effectiveness of the entire performance campaign.

“The legal requirements for B2B landing pages are often underestimated. People think everything is simpler in the business customer sector – but especially with online forms and pre-contractual information obligations, the opposite is true. This is where we encounter the most compliance gaps in contracts.” – Katharina Müller, Head of Digital Law, Federation of German Industries (BDI)

AI-Supported Performance Marketing: Specific Compliance Requirements

Artificial intelligence has revolutionized performance marketing – and simultaneously created new legal challenges. In 2025, the use of AI systems in B2B marketing campaigns has become standard but is subject to strict regulatory requirements.

Transparency Obligations for Algorithmic Decisions in Marketing

The EU AI Regulation, fully in force since January 2025, classifies AI applications in marketing as systems with “limited risk” that are subject to specific transparency obligations. The concrete implementation of these requirements poses challenges for many B2B companies.

Central transparency requirements for AI in performance marketing:

• Disclosure obligation: Users must be able to recognize that they are interacting with or being evaluated by an AI system
• Explainability: Basic functioning of the algorithm must be explainable in an understandable way
• Documentation obligations: AI systems in marketing must be technically documented
• Human oversight: A “human in the loop” must be demonstrable
• Compliance by Design: AI systems must consider compliance requirements from the development stage

A study by the AI Business Consortium shows that 81% of B2B companies use AI-supported performance marketing measures, but only 34% fully meet the required transparency obligations. This compliance deficit represents a significant legal risk.

Legal Limits of AI-Supported Personalization and Targeting

AI-powered personalization is a core area of modern performance marketing but is under special regulatory scrutiny. The legal framework is complex due to the combination of data protection law, AI regulation, and anti-discrimination provisions.

The most important legal limits for AI personalization in B2B:

1. Prohibition of discriminatory algorithms: Even in B2B contexts, protected characteristics (gender, origin, etc.) must not lead to unjustified unequal treatment
2. Restriction of “Dark Patterns”: The Digital Services Act prohibits manipulative UI designs, which are increasingly regulated in B2B marketing as well
3. Opt-out rights: Possibility to reject algorithmic personalization must be guaranteed
4. Restrictions on decision automation: Fully automated decisions with legal effect (e.g., prices, contract terms) are subject to special requirements
5. Increasing regulation of emotional AI: Systems that recognize or influence emotions are being regulated more strictly

For performance marketing contracts, this means: AI-based personalization strategies must be explicitly defined and legally assessed. The responsibilities for compliance checks and updates must be clearly assigned.

Responsibility for Automated Marketing Decisions

The question of responsibility for AI-powered marketing decisions is legally complex and must be precisely regulated in performance marketing contracts. The EU’s AI Regulation differentiates between various roles (provider, operator, user) that carry different responsibilities.

Central aspects of responsibility distribution:

• Definition of roles according to AI Regulation with clear assignment of duties
• Differentiation by decision depth: The more autonomous the system, the higher the requirements
• Liability limitations and exclusions for AI-based marketing must be specifically formulated
• Audit rights for AI systems should be contractually secured
• Logging obligations for algorithmic decisions in marketing

A Gartner analysis from Q1/2025 shows that 62% of B2B performance marketing contracts do not contain sufficient regulations on responsibility for AI systems. This can lead to significant legal uncertainty in case of dispute.

“AI compliance in marketing is becoming the decisive differentiating feature. Companies that invest here not only secure themselves legally but also gain trust from their B2B customers, who increasingly pay attention to ethical and legally secure marketing.” – Sarah Johnson, Chief Ethics Officer, International Association of AI in Marketing

A practical recommendation: Develop an “AI governance matrix” for your performance marketing that links each AI application area with the corresponding compliance requirements, responsibilities, and control mechanisms. This creates transparency and facilitates implementation in contracts.

Compliance Management: Implementation in Medium-Sized B2B Companies

The systematic integration of compliance requirements into performance marketing activities presents a challenge, especially for medium-sized B2B companies. Often, specialized legal departments or dedicated compliance experts are missing. Nevertheless, a structured approach is essential to minimize risks.

Building a Cost-Efficient Compliance Monitoring System

Effective compliance monitoring doesn’t need to be complex or expensive. What’s crucial is a systematic, risk-oriented approach that considers the specific requirements of performance marketing.

Building blocks of a cost-efficient compliance monitoring system:

1. Compliance Risk Assessment: Identification and prioritization of key risks in performance marketing
2. Standard Verification Processes: Standardized checklists for recurring compliance checks
3. Responsibility Matrix: Clear assignment of responsibilities for compliance aspects
4. Regular Reviews: Quarterly review of performance marketing activities for compliance conformity
5. Incident Management Process: Defined procedure for compliance violations or suspected cases

A survey by the German Digital Economy Association (BVDW) from 2024 shows that medium-sized companies with structured compliance monitoring have 72% fewer legal problems in performance marketing than companies without a systematic approach. The investments in compliance thus pay off both through risk minimization and efficiency gains.

Documentation Requirements and Evidence Precautions

The importance of legally secure documentation cannot be overstated. In case of dispute or regulatory audits, the quality of documentation often determines the outcome. This is especially true for performance marketing, where many processes run digitally and automatically.

Essential documentation requirements in performance marketing:

• Consent Evidence: Documentation of opt-ins and their specific wording
• Processing Record according to GDPR for all data processing operations
• Audit Trail for Campaign Changes: Who made what changes when?
• Screenshot Archiving of landing pages, ads, and other relevant marketing materials
• Contract History: Documentation of all contract changes and adjustments
• Training Evidence: Proof of employee training on compliance topics

Robust documentation practice offers a double advantage: It secures evidence for regulatory inquiries and simultaneously serves as a basis for continuous optimization of compliance processes. According to a Deloitte study (2024), 78% of compliance violations in digital marketing can be traced back to inadequate documentation.

Employee Training and Internal Compliance Guidelines

The best compliance systems remain ineffective if they are not understood and lived by employees. Especially in the dynamic environment of performance marketing with its short innovation cycles, continuous training is essential.

Effective approaches to compliance training in B2B marketing:

• Practice-oriented compliance guidelines with concrete examples from performance marketing
• Regular micro-learning units on current compliance topics (15-20 minutes)
• Case-based workshops discussing real compliance dilemmas
• Cross-functional compliance teams with representatives from marketing, legal, and IT
• Compliance champions: Responsible persons in departments with additional qualification

The investment in employee training pays off immediately. The European Institute for Compliance Training proved in 2024 that companies with regular compliance training in the marketing area have a 64% lower risk of fines than companies without structured training programs.

For smaller B2B companies, collaboration with specialized providers or industry associations can be a cost-efficient way to build compliance competence. Many industry associations now offer specialized training for digital marketing that takes industry-specific particularities into account.

“Compliance in performance marketing is not a one-time project but a continuous process. The key lies in combining structured processes, good documentation, and – most importantly – trained employees who understand compliance as part of their daily work.” – Lisa Müller, Head of Digital Compliance, German Society for Data Protection

Case Studies: Compliance Risks in Practice

Abstract compliance requirements become tangible when looking at concrete cases. The following case studies illustrate typical compliance risks in performance marketing contracts and show solution approaches for medium-sized B2B companies.

Case Study: Successful Compliance Integration in the Tech B2B Sector

A medium-sized provider of enterprise software (120 employees) relied heavily on performance marketing for lead generation. After a fine for GDPR violations in performance marketing, the company implemented a comprehensive compliance approach.

Initial situation:

• Cooperation with three performance marketing agencies for different regions
• Success-fee-based compensation for generated MQLs
• Unclear contractual responsibilities for compliance aspects
• Growing international presence with different legal requirements

Compliance challenges:

• GDPR fine for insufficient consent in lead generation (€175,000)
• Contractual disputes with agencies over liability issues
• Inconsistent compliance standards in different markets
• Increasing use of AI in performance marketing without adequate governance

Implemented solutions:

1. Development of standardized performance marketing contracts with clear compliance responsibility
2. Introduction of a central compliance approval process for all new marketing campaigns
3. Integration of a LegalTech solution for automated compliance checking of landing pages
4. Quarterly compliance audits of all performance marketing activities
5. Training program for the marketing team and agency partners

Results:

• No further regulatory problems since implementation (24 months)
• Reduction of contract negotiation time by 64% through standardized compliance clauses
• Improved campaign performance through higher conversion rates on legally compliant landing pages
• Competitive advantage through certification as a “Compliance Leader” in the industry

This case study shows: Investments in compliance not only create legal security but can also bring performance advantages. The structured approach allowed the company to use compliance as a strategic competitive advantage.

Lessons Learned: Common Compliance Errors and Their Consequences

The analysis of compliance violations in B2B performance marketing shows recurring patterns. The following examples are based on anonymized real cases from 2023-2025.

Case 1: Unclear Responsibilities in Multi-Channel Attribution

An industrial supplier worked with two performance agencies, both compensated based on conversions. Due to imprecise contractual regulations on attribution, double counting and double compensation occurred. When regulatory concerns about the tracking setup arose, it was unclear who bears the responsibility.

Consequence: Additional costs of €87,000 through double compensation and subsequent implementation of a legally compliant attribution model.

Solution: Implementation of a central attribution model with clear contractual definition and integration of compliance requirements into the attribution.

Case 2: Missing Clauses for Regulatory Changes

A B2B SaaS provider entered into a two-year performance marketing contract with fixed KPIs. When new cookie restrictions were introduced during the contract period that measurably impaired performance, the contract contained no adjustment clauses.

Consequence: Legal dispute with the agency, campaign stoppage, and missed leads worth an estimated €250,000.

Solution: New contract template with robust change-of-law clauses and defined adjustment mechanisms for KPIs in case of regulatory changes.

Case 3: Lack of Transparency in AI Use

A provider of industrial solutions relied on AI-powered lead scoring models without transparently documenting the algorithmic decision-making. After the AI Regulation came into force, the methods used were not compliant.

Consequence: Necessary suspension of the lead scoring system for three months, revenue losses of approximately €180,000 due to inefficient lead processing.

Solution: Development of a documented, transparent AI governance model with regular compliance checks and clear contractual regulations.

Cost-Benefit Analysis of Compliance Measures

Implementing compliance measures in performance marketing incurs costs – but also offers significant economic benefits. A well-founded cost-benefit analysis helps to strategically plan investments in compliance.

Typical cost factors for compliance in performance marketing:

Quantifiable benefits of compliance investment:

• Avoided Fines: Average GDPR fines for medium-sized companies in 2024 were €220,000 (Source: Data Protection Authority)
• Reduced Legal Costs: Disputes over performance marketing contracts cost an average of €35,000 (Source: PwC accounting firm)
• Efficiency Gain: Standardized compliance processes reduce administrative effort by an average of 22% (Source: Digital Marketing Association)
• Avoided Campaign Interruptions: Compliance-related campaign stoppages cost B2B companies an average of €4,200 per day (Source: Marketing Analytics Institute)

Non-quantifiable benefits:

• Improvement of company reputation
• Stronger trust from B2B customers and partners
• Competitive advantage through compliance leadership
• Higher employee satisfaction through clear processes

An ROI analysis by the European Compliance Institute (2024) shows that B2B companies with robust compliance programs in performance marketing achieve an average ROI of 320% on their compliance investments – primarily through avoided costs and efficiency gains.

“The most painful aspect of compliance problems in performance marketing is not the fine – it’s the reputational damage and lost business time. In our case, a compliance incident set our marketing strategy back by six months – damage that far exceeded the monetary fine.” – Markus Weber, CMO of a medium-sized B2B software company

Practical Guide: Compliance Check for Your Performance Marketing Strategy

The theoretical foundations are important – but in the end, practical implementation matters. This guide offers concrete recommendations for medium-sized B2B companies to design their performance marketing contracts and activities in a legally secure way.

10-Point Checklist for Legally Secure Performance Marketing Contracts

The following checklist covers the most important aspects that should be regulated in performance marketing contracts for B2B companies. It serves as a practical tool for reviewing existing and new contracts.

1. Clear Definition of Performance Metrics
   • Unambiguous determination of KPIs and measurement methodology
   • Regulation for handling tracking problems
   • Definition of quality criteria (especially for lead generation)
2. Data Protection Compliant Performance Measurement
   • Specification of tracking methods used
   • Determination of responsibilities for obtaining consent
   • Regulations for data storage and deletion
3. Liability Distribution and Indemnification
   • Clear assignment of compliance responsibilities
   • Limits of mutual indemnification
   • Regulations on liability for compliance violations
4. Compliance Representations and Warranties
   • Assurance of compliance with relevant laws
   • Assurance of professional competence for compliance issues
   • Commitment to adhere to best practices
5. Adaptation Mechanisms for Regulatory Changes
   • Change-of-law clauses with concrete processes
   • Regulations for KPI adjustment in case of legal restrictions
   • Procedures for compliance-related performance limitations
6. Regulations for AI Use
   • Transparency obligations for algorithmic systems
   • Compliance standards for AI-powered personalization
   • Responsibilities for AI-based decisions
7. Documentation and Evidence Obligations
   • Determination of aspects to be documented
   • Retention periods for compliance-relevant documents
   • Process for compliance evidence
8. Audit and Control Rights
   • Right to compliance verification
   • Determination of audit processes and deadlines
   • Consequences for identified compliance deficiencies
9. International Compliance Aspects
   • Regulations for cross-border campaigns
   • Determination of applicable legal systems
   • Handling of regional regulatory differences
10. Termination and Transition Regulations
    • Compliance-related termination rights
    • Data transfer at contract end
    • Continuing compliance obligations after contract termination

This checklist should be adapted to the specific requirements of your company and industry. It does not replace legal advice but provides a structured framework for contract design and review.

Collaboration with Agencies: Properly Distributing Compliance Responsibility

Collaboration with agencies is central to performance marketing for many B2B companies. This always raises the question: Who bears which compliance responsibility? A clear distribution is essential for a functioning compliance management.

Best practices for distributing compliance responsibility:

• Create a responsibility matrix: Document in writing who is responsible for which compliance aspects (RACI model: Responsible, Accountable, Consulted, Informed)
• Conduct regular compliance briefings with agencies (quarterly recommended)
• Organize joint compliance trainings for your team and agency partners
• Establish standardized approval processes for all campaign elements
• Clearly define escalation paths for compliance concerns

Typically, the distribution of responsibility should look as follows:

Such a clear distribution reduces misunderstandings and creates transparency about responsibilities. A study by the Association of National Advertisers (2024) shows that companies with clearly defined compliance responsibilities have 74% fewer compliance-related conflicts with their agencies.

Audit Plan: How to Review Your Existing Performance Marketing Contracts

Regular compliance audits are a central element of risk management in performance marketing. A structured audit plan helps to systematically identify and close compliance gaps.

6-Step Audit Plan for Performance Marketing Contracts:

1. Conduct Inventory
   • Inventory of all active performance marketing contracts
   • Identification of key stakeholders
   • Collection of relevant compliance requirements (internal/external)
2. Conduct Gap Analysis
   • Comparison of contracts with current legal requirements
   • Identification of missing or inadequate clauses
   • Assessment of compliance risks by probability and impact
3. Conduct Operational Compliance Check
   • Verification of actual implementation of contractual compliance requirements
   • Random checks of campaign materials
   • Review of documentation practices
4. Define Improvement Measures
   • Prioritization of identified compliance gaps
   • Development of concrete measures to close these gaps
   • Assignment of responsibilities and deadlines
5. Initiate Implementation
   • Adjustment of existing contracts (if necessary through amendments)
   • Implementation of improved processes
   • Training of relevant employees
6. Establish Follow-up
   • Regular review of implementation (quarterly recommended)
   • Documentation of progress
   • Adaptation to new regulatory developments

Recommendation: Start by focusing on the biggest risk areas – typically data protection, tracking, and AI use. Experience shows that an iterative approach with clear prioritization is more successful than attempting to address all compliance aspects simultaneously.

“A systematic audit plan is like insurance for your performance marketing. The initial effort may seem high, but the risk reduction and the gained certainty of action justify the investment many times over. Particularly valuable is the experience that a solid compliance framework also improves performance, as it brings clarity and professionalism to all processes.” – Christian Schneider, Digital Compliance Officer, Association of Medium-Sized Digital Businesses

Frequently Asked Questions (FAQ)