Labelling violations on social media profiles have occupied German civil courts for quite some time. Among others, the Regional Court of Cologne had to decide in its judgement of 14.09.2021, file no. 31 O 88/21, whether and under which conditions an influencer agency can be held liable for labelling violations of the influencer.
Who is generally liable for the content of a social media profile?
In principle, the responsibility for postings on a social media profile on instagram, facebook, youtube, twitter and co. is based on the imprint. This means that the natural or legal person of a social media profile named in the imprint is legally responsible for its content. In principle, all social media profiles operated on a business basis, i.e. not purely privately operated, are subject to the imprint requirement.
When is a social media profile used for business?
The assessment of whether the social media account is used for private or business purposes, and thus whether there is an obligation to provide an imprint, is based on objective criteria, such as the external effect of the profile. A business use is always deemed to exist if, according to the external effect of the profile, there is an advertising surplus, for example if the advertising in the profile clearly outweighs the entertainment value. The Federal Court of Justice assumes, for example, that a link to a website of the manufacturer of the product depicted regularly suggests an advertising surplus.
When is an influencer's agency liable for its labelling violations?
Influencers increasingly decide not to mention their private name and address in the imprint to protect their privacy. Instead, the influencers name an agency in the imprint. Whether and under what conditions an agency can also be held liable in the event of a labelling violation by the influencer was the decision of the Regional Court of Cologne.
The Regional Court of Cologne clarifies that, in principle, an agency is also liable for posts by the influencer. On the one hand, the agency may be liable if the agency "instigates" the influencer to create a post in disregard of the labelling requirements. In practice, however, this will occur very rarely and will be difficult to prove. But even if the agency does not ask the influencer to create a post in violation of labelling obligations, the agency is liable for the post. The mere fact that the agency is named in the imprint is sufficient for corresponding liability. This was because being named in the imprint signalled to the legal community that the agency was responsible for the content. Fault, i.e. intent or negligence on the part of the agency, was not relevant.
Can an agency avoid liability for the influencer's labelling violations?
No. It is not legally possible to prevent the agency from being held liable for labelling violations by the influencer as soon as the agency has been named in the imprint. Liability is not limited to labelling violations but also includes trademark infringements and copyright violations by the influencer. Agencies should therefore be aware of their very high liability risk.
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Source: Regional Court of Cologne with judgement dated 14.09.2021, 31 O 88/21
GoldbergUllrich Rechtsanwälte PartG mbB 2022
Christopher Pillat, LL.M. (Intellectual Property Law)
Lawyer
