Indirect Interferer Liability and the Limits of the DSA

1. Introduction

Fake profiles on social networks are no longer a marginal phenomenon; they increasingly affect public figures, companies and institutions. They interfere with core personality rights and confront civil courts with the task of fitting classic instruments such as section 1004 German Civil Code (BGB) by analogy, section 823 BGB, section 12 BGB and sections 22, 23 German Art Copyright Act (KUG) into a liability regime shaped by the Digital Services Act (DSA).

A recent decision of a higher regional court on fake profiles clarifies the liability of social media providers as indirect interferers and shows that the DSA does not undermine the enforceability of civil-law injunctions.

2. Legal Framework at a Glance

2.1 General Right of Personality and the Basic Law

The general right of personality is derived as an “other right” within the meaning of section 823(1) BGB from Article 2(1) in conjunction with Article 1(1) of the German Basic Law (GG). The use of a person’s name, image and biographical details in a fake profile interferes with their social reputation, their self-presentation and their informational self-determination.

Fake profiles that falsely create the impression that the account is operated by the person concerned themselves, or at least with their approval, are therefore qualified as an interference with the general right of personality.

2.2 Right to a Name under Section 12 BGB

Section 12 BGB protects the right to one’s own name, in particular against unauthorised use of the name that causes confusion about attribution. A fake profile operated under the civil name or a characteristic name of the person concerned will typically fulfil these conditions if third parties gain the impression that the person stands behind the profile.

The mere attribution of a profile to a person in the eyes of users is sufficient to trigger the protection of section 12 BGB, provided the appearance of a genuine, authorised profile is created.

2.3 Right to One’s Image (Sections 22, 23 KUG)

The right to one’s own image under sections 22, 23 KUG generally requires the consent of the depicted person. If a photo is used in a profile without consent and this profile impersonates the person, this usually does not fall under any privileged form of use (such as depiction from contemporary history, art or satire).

If photographs of a person are used in the context of an apparently authentic profile, this impairs their self-determination over their own presentation online and violates the right to one’s image.

2.4 Section 823(1) BGB and Section 1004 BGB by Analogy

Section 823(1) BGB acts as a general tort provision covering personality, name and image rights as protected “other rights”. Section 1004 BGB is applied by analogy to establish a strict (fault-independent) claim for injunctive relief against future interferences.

Those affected can assert claims for injunctive relief against the platform operator when the operator fails to act despite being aware of the infringing content. In practice, the claim is based on a combination of sections 1004, 823(1) BGB in conjunction with Articles 1(1) and 2(1) GG, section 12 BGB as well as sections 22, 23 KUG.

2.5 Interaction with the DSA

The DSA regulates liability privileges and due diligence obligations of hosting service providers, but it does not displace national civil law. It does not impose a general monitoring obligation, but it does require platforms to act expeditiously once they become aware of illegal content.

Article 6(4) DSA makes it clear that courts in the Member States remain entitled to issue injunctions that also extend to future identical or essentially similar infringements. National civil law – in particular sections 823, 1004 BGB, section 12 BGB and sections 22, 23 KUG – therefore continues to apply and is framed, but not replaced, by the DSA.

3. Indirect Interferer Liability of the Platform

3.1 Concept of Indirect Interferer Liability

A person is liable as an indirect interferer (mittelbarer Störer) if they are not a direct perpetrator or participant but nevertheless contribute to the infringement in a deliberate and adequately causal manner and breach reasonable duties of inspection. It already suffices that they support or exploit the actions of an independently acting third party if they had both a legal and factual possibility to prevent the infringement.

Liability must not be expanded boundlessly to third parties; therefore, it presupposes a breach of duties of conduct, in particular duties of inspection. Their scope is determined by what is reasonable in the circumstances of the individual case.

3.2 Triggering of Duties of Inspection

Duties of inspection arise as soon as the person concerned lodges a complaint that is sufficiently specific so that the infringement can be affirmed without in-depth legal or factual examination. In the context of fake profiles, this is generally the case where:

• the specific profile is identified by URL and screenshot,
• the identity theft (name, photos, professional details) is described,
• the absence of consent is clearly stated.

If the affected person also points out that their name and likeness are being used in such a way that the profile appears authentic, a manifest violation of personality, name and image rights is evident. The platform must then investigate and take action.

3.3 Application to Social Media Platforms

Social media providers supply the technical infrastructure and enable users to create profiles. They are therefore not the direct perpetrators of the infringement but can be held liable as indirect interferers if they fail to act after being put on specific notice.

If a platform does not respond, or only responds after undue delay, to a substantiated notice, it breaches its duties of inspection and action. From that point on, the DSA’s liability privilege no longer applies and an injunctive claim against the platform operator arises.

4. Scope of the Injunction: Identical and Essentially Similar Fake Profiles

A particularly relevant question is whether the injunction is limited to the specific URLs identified or also covers future identical or essentially similar accounts.

The prevailing doctrinal approach is that the injunction is not limited to the specific URL but captures the infringing conduct in its typical form: the specific infringing act and all essentially similar acts are prohibited. For platform operators this means that they must:

• block or delete the concretely reported fake accounts, and
• prevent future identical or at least essentially similar fake profiles under a different web address.

A new prior complaint by the affected person is not always necessary if the new profiles are identical or essentially similar in content and can be recognised as repetitions of the prohibited infringement without requiring a fresh legal assessment.

5. Risk of Repetition, Urgency and Interim Relief

The first infringement gives rise to a factual presumption of a risk of repetition. This presumption is generally rebutted only by a serious, usually contractual and penalised, cease-and-desist undertaking or by other circumstances that eliminate the risk of repetition.

The mere deletion of the specific fake profiles without a cease-and-desist declaration is not sufficient, particularly since new fake accounts can be created at any time by third parties. Platforms that also take the view that they are not obliged to provide more far-reaching undertakings reinforce the impression that the risk of repetition continues to exist.

Urgency (Verfügungsgrund) is regularly assumed in cases of online personality rights infringements because information spreads and entrenches quickly. Even if the specific profiles have been deactivated by the time of the court’s decision, urgency may persist where the danger of essentially similar infringements is real and only the platform has the technical means to prevent them effectively.

6. Practical Recommendations for Those Affected

6.1 Immediate Steps vis-à-vis the Platform

Those affected should first use the reporting tools provided by the platform and carefully document the infringement. In particular, the following are helpful:

• screenshots of the fake profile showing URL, date and content,
• documentation of the identity features used (name, photo, professional details) and comparison with their official online presence,
• use of specific reporting forms for identity theft or account impersonation,
• precise description of the infringement (identity theft, unauthorised use of name, unauthorised use of image),
• documentation of all platform responses (email confirmations, ticket numbers, response times).

The more concrete the notice, the easier it is to establish an infringement that is “readily apparent” to the platform.

6.2 Involving Legal Counsel and Sending a Warning Letter

If the platform does not respond or only does so after delay, legal advice should be sought. A warning letter with a deadline for deletion and a cease-and-desist demand sets out the legal basis and prepares the ground for court proceedings.

The warning letter should:

• refer to the infringed rights (personality, section 12 BGB, sections 22, 23 KUG),
• describe the specific infringing conduct with reference to the preserved evidence,
• formulate a specific claim for injunctive relief that also covers essentially similar infringements.

In practice, platforms do not always issue a contractual cease-and-desist undertaking, but a court order granting injunctive relief already exerts significant pressure and enables the enforcement of penalties (order measures) in case of violations.

6.3 Interim Relief: Preliminary Injunction

Given the dynamic nature of social media, interim relief plays a key role. In addition to the claim itself, urgency is a crucial condition.

An application for a preliminary injunction should:

• rely on section 1004 BGB by analogy in conjunction with section 823 BGB, section 12 BGB and sections 22, 23 KUG,
• demonstrate the platform’s inaction or delay despite knowledge,
• formulate the requested injunction in such a way that not only the specific URLs but also identical and essentially similar fake profiles are covered.

Courts tend to grant interim relief promptly in clear cases of identity rights violations in order to provide effective protection.

6.4 Strategic Scope of the Injunctive Claim

In practice, it is advisable not to request a completely abstract, general prohibition of “any fake profiles”, but rather to link the claim to the specific infringement and extend it to essentially similar variants. This improves the specificity and enforceability of the injunction.

A typical injunction:

• refers to the specific profiles complained of, and
• extends to profiles that are identical or essentially similar to them, even if they are available under a different URL.

In this way, the scope of protection is sensibly broadened without turning the injunction into an undefined general monitoring obligation for the platform.

7. Relevance for Platform Operators and Compliance

For social media companies, the decision highlights the need to establish clear internal processes for dealing with identity abuse. These include:

• easily accessible and functional complaint channels,
• legally trained teams capable of assessing identity violations,
• technical systems that can detect identical or essentially similar profiles (for example, via image, name or pattern recognition),
• defined response times and documented takedown procedures.

If such structures are lacking, platforms face not only injunctions and penalties but also lasting reputational damage and potentially stricter regulation. The current line of case law makes it clear that platforms cannot hide behind liability privileges under the DSA when they fail to act promptly in the face of obvious identity rights infringements.

Our Law Firm’s Recommendation

Our law firm has specialised for many years in personality rights, media law, IT and data protection law, and represents clients throughout Germany in cases involving fake profiles and other unlawful social media content.

Our specialised lawyers have extensive experience with preliminary injunctions and court proceedings against major platform operators, as well as with out-of-court takedown procedures. In numerous successful cases, we have obtained the deletion of unlawful profiles, far-reaching injunctions (including for identical and essentially similar content) and, in individual cases, financial compensation.

Thanks to our focus on the DSA, the GDPR and platform regulation, we develop a tailor-made strategy for each case – from securing evidence at the outset through to the consistent enforcement of claims in court. Individuals and organisations who wish to defend themselves against fake profiles, identity theft or reputation-damaging content benefit from this concentrated expertise and our many years of forensic experience.

The post Protection Against Fake Profiles on Social Networks appeared first on Jüdemann Rechtsanwälte.

1. Introduction: The Legal Grey Area of Reaction Videos

Reaction videos have become a staple of digital media culture. They shape public opinion, provide entertainment, and enable interactive engagement with content. From humorous commentary to in-depth analysis or political statements, the spectrum is vast. However, the apparent ease with which third-party content is integrated into these videos belies a complex legal landscape—especially concerning copyright and trademark law.

The judgment of August 29, 2024, is a landmark decision that clarifies and tightens the requirements for creators of reaction videos, particularly regarding the obligation to credit authors and the application of copyright exceptions. It demonstrates that the assumption that reaction videos automatically fall under a copyright exception is often a misconception. This article explores the core aspects of the judgment, expands on trademark implications, and outlines the comprehensive consequences creators may face if they fail to comply with legal requirements.

1. The Judgment of August 29, 2024: Detailed Copyright Analysis

The court’s order of August 29, 2024, concerning a preliminary injunction, provides valuable insights into current case law on reaction videos. The applicant, seeking to prevent the removal of three specific videos from the platform “E.” and to avoid copyright warnings, was denied relief. The court’s reasoning is crucial.

The court found that the applicant’s public accessibility of “third-party moving images” constituted a copyright infringement. These moving images are protected at least under § 95 of the German Copyright Act (UrhG) (protection of moving images as photographic works or similar representations) or as film works (§ 2(1)(6) UrhG). The use occurred without the rights holder’s consent. The applicant could not successfully invoke any statutory copyright exceptions.

1. The Decisive Role of Author Attribution (§ 63(2) UrhG) in the Context of the Quotation Right (§ 51 UrhG)

The core of the court’s reasoning is the denial of the quotation right under § 51 UrhG, the most important exception for using third-party works in reaction videos.

1. a) The General Rule of Complete Author Attribution
   51 UrhG allows the reproduction, distribution, and public communication of a published work for the purpose of quotation, provided the use is justified by the specific purpose. The court acknowledged that the requirements of this provision could, in principle, be met, as the applicant engaged with the content of the moving image excerpts and commented on them as part of their own expression of opinion. However, the decisive hurdle was the failure to comply with the “formal requirements” of § 63(2) UrhG. According to this provision, in cases of public communication, the source—including the author’s name—must always be indicated unless this is impossible.

The applicant had indicated the source of the used videos but did not name the author, which was necessary. The absence of author attribution was not justified. The entire quotation was thus unlawful.

1. b) Narrow Interpretation of “Impossibility” of Author Attribution
   The court emphasized that author attribution is the rule and its omission the exception. Such an exception only applies if attribution is “impossible,” and the burden of proof lies with the user. The user must specifically demonstrate what efforts were made to identify the author.
2. c) Extensive Duty to Research
   The court stressed the duty to actively research the author. It is insufficient that the author was not listed on the platform. The applicant should have, for example, contacted the channel operator via the provided email address to inquire about authorship. The applicant’s fear of political backlash was deemed understandable but not sufficient to render attribution impossible.
3. d) The Painer/Standard Exception
   The court distinguished this case from the ECJ’s “Painer/Standard” decision, where omission of author attribution was allowed because the secondary source was not permitted to name the author. Here, the applicant used the original source, so research was feasible.
4. e) Consequence
   Violation of the attribution requirement renders the use of the work entirely unlawful.
5. Pastiche (§ 51a UrhG): Between Legislative Intent and Restrictive Case Law

Another central point is the rejection of the pastiche exception (§ 51a UrhG), introduced with the implementation of the DSM Directive.

1. a) Broad Legislative Intent vs. Judicial Interpretation
   The German legislator intended a broad concept of pastiche to cover practices like remix, meme, GIF, mash-up, fan art, fan fiction, or sampling as key elements of contemporary digital culture. The court, however, followed the restrictive approach of the German Federal Court of Justice (BGH), which sees pastiche as at least a catch-all for artistic engagement with a pre-existing work, possibly requiring humor, stylistic imitation, or homage.
2. b) Application to Reaction Videos
   The court found no artistic engagement in the applicant’s videos, only political commentary. Even if some humor was present, it was merely a stylistic device for commentary, not a protected artistic contribution.
3. c) Avoiding Redundancy with the Quotation Right
   The court argued that accepting pastiche in such cases would render the quotation right and its limitations obsolete, which was not the intent of the EU legislator.
4. Other Exceptions: Inapplicability to Pure Commentary

The court also considered other exceptions, such as reporting on current events (§ 50 UrhG) or caricature and parody (§ 51a UrhG), and found them inapplicable. The applicant did not caricature or parody the content but merely commented on it.

Key Takeaway:
Pure commentary or political engagement with third-party video material without full author attribution is unlawful and does not fall under broad copyright exceptions, especially not pastiche.

III. Trademark Law Challenges for Reaction Videos: A Deeper Look

In addition to copyright, reaction videos also pose significant trademark risks. Often, the content being reacted to features trademarks, logos, slogans, or even product placements.

1. Trademark Law Functionality and the Risk of Confusion

Trademarks serve to distinguish the goods or services of one company from another (§ 3 German Trademark Act, MarkenG). Trademark infringement occurs if a protected sign is used “in the course of trade” without the owner’s consent (§ 14(2) MarkenG). For professional creators earning revenue, this is typically the case.

Risks include:

• Identical or Similar Use for Similar Goods/Services: If viewers might believe the creator is affiliated with the trademark owner.
• Risk of Confusion: If the impression arises that the reaction video is from or authorized by the trademark owner.
• Exploitation or Detriment to Distinctiveness or Reputation: Especially relevant for well-known marks (§ 14(2)(3) MarkenG).

2. Limits of “Nominative Use” and Critical Reporting

Generally, the mere mention or depiction of a trademark for descriptive or critical purposes is permissible, provided it does not imply a business relationship with the trademark owner. However, the boundaries are fluid:

• Advertising Impression: Using a trademark in a way that objectively appears as advertising for the creator’s or third-party products crosses the line.
• Avoiding Defamation or Denigration: Criticism is allowed, but not unfounded negative statements that could constitute actionable disparagement.
• Risk of Confusion or Unfair Exploitation: If the use creates the impression of partnership or unfairly leverages the brand’s reputation, infringement may occur.

3. Practical Examples

• Prominent Product Placement: Reacting to an ad and repeatedly showing a product without critical engagement may be impermissible, especially if the creator also advertises products.
• Uncommented Logo Displays: Inserting logos as background or overlays without direct commentary may suggest exploitation of the brand’s reputation.
• Use of Slogans in Titles/Descriptions: Employing well-known slogans without direct critique may constitute unfair exploitation.

Trademark law assessments are highly fact-specific and require careful balancing of freedom of expression and trademark protection.

1. Comprehensive Consequences for Creators and Preventive Strategies

Non-compliance with copyright and trademark law can have far-reaching, even existential, consequences for creators, extending well beyond mere video deletion.

1. Civil Sanctions: Cost Risks and Damages

The most common first step by rights holders is a cease-and-desist letter. The creator is required to remove the content, sign a cease-and-desist declaration (often with a penalty clause), and pay the rights holder’s legal fees.

If the creator refuses:

• Preliminary Injunctions: As in this case, rights holders can obtain a quick court order.
• Main Proceedings: If necessary, a full trial may follow.

Damages:
Rights holders can claim damages, calculated by:

• License analogy: What a reasonable licensee would have paid.
• Actual damages: If provable.
• Surrender of profits: The creator must disclose and surrender profits from the infringement.

All legal costs can quickly escalate, especially with high-reach videos.

2. Criminal Implications

Copyright (§ 106 UrhG) and trademark (§ 143 MarkenG) infringements can also be criminal offenses, especially if intentional and commercial. Fines and even imprisonment are possible, though rare.

3. Platform Enforcement: Content ID and Strikes

Platforms like YouTube, Twitch, and TikTok use automated systems (e.g., Content ID) to detect infringements. Rights holders can block, monetize, or issue strikes. Three strikes within a set period (e.g., 90 days on YouTube) can lead to permanent channel deletion.

4. Reputational and Sponsorship Risks

Legal disputes or public cease-and-desist letters can severely damage a creator’s reputation, affecting both audience and potential sponsors.

5. Recommendations for Creators

• Strictly comply with attribution requirements: Always name the author and source; actively research if not immediately apparent.
• Assess the purpose of trademark use: Only use brands in a descriptive or critical context, not for advertising or reputation exploitation.
• Focus on original creativity and transformation: The more original input, the more likely an exception may apply.
• Use licensed or license-free material: Prefer Creative Commons or explicitly licensed content.
• Seek legal advice when in doubt: Especially for high-value or controversial content.
• Be cautious with political commentary: Pure political commentary on third-party content without artistic engagement is not protected by copyright exceptions.

1. Conclusion: The Evolution from “Digital Wild West” to a Regulated Space

The August 29, 2024, judgment sends a clear message to the creator community: The era of lax copyright practices online is ending. Reaction videos remain a vital format, but their creation now requires legal diligence and responsibility.

Active research, strict attribution, and a clear understanding of the limits of copyright and trademark exceptions are essential. Creators who embrace these challenges and take preventive measures can continue to thrive. Those who ignore the risks face severe civil, criminal, and platform-related consequences that could jeopardize their entire online presence.

The post Reaction Videos Rigths and Obligations – District Court Cologne 06.09.2024 – 14 O 291/24 appeared first on Jüdemann Rechtsanwälte.