Introduction to the Imprint Obligation
The imprint obligation is a central element of German law. It serves to ensure transparency and accountability of online content. This legal requirement mandates that anyone posting commercial or professional content online must provide an imprint. An imprint allows users to identify the provider of a service or goods and contact them if necessary. This enhances transparency, builds user trust, and ensures accountability for published content.
The legal basis for the imprint obligation stems from the German Telemedia Act (TMG) and, since November 2020, the Interstate Media Treaty (MStV). The MStV replaced the previous Interstate Broadcasting Treaty. The TMG primarily regulates all electronic information and communication services, including internet sites. The MStV, conversely, governs the legal framework for broadcasting and new media in Germany.
Both sets of regulations play a critical role in controlling online content. This includes content on streaming platforms like Twitch and YouTube. The scope of these regulations is particularly noteworthy, as they apply not only to conventional websites but also to social media profiles, blogs, online stores, and streaming platforms.
For further information on the imprint obligation, its specific requirements, and its application in the context of Twitch and YouTube, please refer to an older article. There you will find detailed insights and answers to frequently asked questions on this topic.
Open Questions Regarding the Imprint Obligation
Despite clear legal regulations, the exact implementation of the imprint obligation on platforms like Twitch and YouTube still presents some gray areas and open questions. A central point of discussion concerns whether it is sufficient to state the agency in the imprint. Specifically, can streamers and YouTubers who are represented by an agency include their agency's contact details in the imprint instead of their own? You can find a detailed discussion of this in this article.
Another controversial issue is whether an artist's name is sufficient for the imprint. Many streamers and YouTubers use pseudonyms and would prefer to include these in their imprint. The question arises: Is this legally permissible? More information on this can be found in this article.
Furthermore, it remains unclear whether a simple link to an external website containing the imprint suffices to comply with the imprint obligation. This topic is discussed in detail in this paper.
A particularly intricate and ambiguous question is who actually operates a Twitch or YouTube channel. Is it the platform itself, meaning Twitch or YouTube, or is the respective streamer or YouTuber the operator? Additionally, it is not yet clear whether the case law for Twitch and YouTube is comparable to rulings on other platforms such as Facebook. These issues hold considerable importance, both legally and in terms of their practical impact.
Current Developments Regarding the Imprint Obligation
Just recently, a remarkable incident occurred that should prompt the industry to take notice. A Twitch streamer, a client of my agency, received an email from a state authority. The email requested him to set up an imprint on his channel.
Failure to comply with this request could subject him to a fine of up to 50,000 euros, pursuant to Section 11 TMG in conjunction with Section 5 TMG. This represents an unprecedented intervention by an authority, potentially carrying far-reaching implications for the industry.
The explosive nature of this incident stems from the fact that warning letters from competitors for imprint violations have become considerably more difficult. This is due to changes in the Unfair Competition Act (UWG) in 2020. Consequently, a gray area may have formed where the imprint obligation on platforms like Twitch and YouTube was not always fully adhered to.
However, this intervention by the state authority could lead to a significant tightening of how the imprint obligation is handled. The threat of a fine clearly indicates that authorities are prepared to enforce legal requirements and penalize violations. This may profoundly affect all commercially active streamers and YouTubers who currently lack an imprint on their channels. It is strongly recommended to monitor these developments closely and to seek legal advice if necessary.
In this particular case, I was able to reach an arrangement with the authority to avert the fine proceedings. This involved an adjustment of the imprint and the correct indication of the existing agency. However, this agreement does not bind other state authorities or media institutions, so everyone must remain vigilant. If a streamer does not have an agency, they cannot avoid providing a correct imprint to prevent future fines under the TMG.
Conclusion
It appears that authorities are now actively engaging and obliging streamers and YouTubers to provide a correct imprint. This marks a turning point, emphasizing the importance of carefully reviewing which disclosures are mandatory and which are not. The potential consequences of disregarding these obligations should not be underestimated.
Nevertheless, it is crucial to highlight that influencer agencies should exercise caution when asked to provide their masthead. Being classified as an "operator" of a channel can lead to significant legal consequences. This can become particularly problematic if warnings and lawsuits arise, and the company's own marketing contracts do not cover such situations. I have recently been involved in several court cases concerning these issues, including those involving potential claims for damages.