BGH: Youtube advertising not a media service

In its judgment of September 13, 2018, the Federal Court of Justice (BGH) ruled under the case number I ZR 117/15 that a video channel operated on YouTube, as well as an advertising video that can be viewed there, do not constitute an audiovisual media service within the meaning of Art. 1 I a of Directive 2010/13.

Accordingly, a video in which new motor vehicles are advertised must contain information on official fuel consumption and CO2 emissions. Otherwise, there is a violation of § 8 I S. 1 and III No. 3, § 3 I, § 3a UWG in conjunction with § 8 I S. 1 and III No. 3. § 5 I, II Pkw-EnVKV.

The decision joins a growing body of case law surrounding social media channels and influencers. Meanwhile, there are a variety of factors to consider when advertising on social media.

Although the channel at issue here was really a pure advertising channel, the BGH’s reasoning is broad. Thus, the BGH allowed the exception of § 5 para. 2 Pkw-EnVKV, as the present case does not involve the formation of an opinion, but rather advertising. So, for example, while a YouTube channel that tests cars falls under the exception, an influencer who features a vehicle in light of the current orthodoxy around surreptitious advertising might not fall under the exception with good arguments.

The difference here is whether advertising is done to fund editorial content or whether a channel’s primary purpose is to generate revenue. The gray area is narrow and influencers, as well as streamers, may be well advised to check the exact activities in detail.