Violations of labeling requirements on social media profiles have occupied German civil courts for some time. Among other things, the Cologne Regional Court, in its judgment of September 14, 2021, Ref. 31 O 88/21, had to decide whether and under what conditions an influencer agency can be held liable for the influencer's labeling violations.
Who is generally liable for the content of a social media profile?
Generally, the responsibility for postings on a social media profile on Instagram, Facebook, YouTube, Twitter, and similar platforms is determined by the impressum. This means that the natural or legal person named in the impressum of a social media profile is legally responsible for its content. As a rule, all commercially operated social media profiles, i.e., those not operated purely privately, are subject to the impressum requirement.
When is a social media profile used for commercial purposes?
The assessment of whether a social media account is used privately or commercially, and thus whether an impressum obligation exists, is based on objective criteria, such as the external perception of the profile. Commercial use is regularly present when, based on the external perception of the profile, there is a promotional surplus, for instance, if the advertising on the profile significantly outweighs its entertainment value. The Federal Court of Justice, for example, assumes that linking to a manufacturer's website for the depicted product regularly suggests a promotional surplus.
When is an influencer's agency liable for their labeling violations?
Influencers are increasingly opting not to disclose their private name and address in the impressum for reasons of personal privacy. Instead, influencers list an agency in the impressum. The Cologne Regional Court recently had to decide whether and under what conditions an agency can also be held liable in the event of an influencer's labeling violation.
The Cologne Regional Court clarifies that, in principle, an agency is also liable for the influencer's posts. Firstly, agency liability may arise if the agency "incites" the influencer to create a post in disregard of labeling obligations. However, this will be extremely rare in practice and difficult to prove. But even if the agency does not instruct the influencer to create a post in violation of labeling obligations, the agency is liable for the post. The mere fact that the agency is named in the impressum is sufficient for such liability, as its inclusion in the impressum signals to legal traffic that responsibility for the content exists. Fault, i.e., intent or negligent conduct on the part of the agency, is not a prerequisite.
Can an agency prevent liability for an influencer's labeling violations?
No. Legal recourse against an agency for an influencer's labeling violations cannot be prevented once the agency is named in the impressum. This liability is not limited to labeling violations but also encompasses trademark infringements and copyright violations by the influencer. Agencies should therefore be aware of their very significant liability risk.
We provide reliable and expert advice on all matters concerning IT law, industrial property rights, and copyright and media law. Please feel free to contact us at any time.
Source: Cologne Regional Court, judgment of September 14, 2021, 31 O 88/21
GoldbergUllrich Attorneys at Law PartG mbB 2022
Christopher Pillat, LL.M. (Intellectual Property Law)
Attorney-at-Law
