The Legal Gray Area: Identifiability and Injunctive Relief in Influencer Law
In my practice as a lawyer advising numerous influencers, I repeatedly encounter complex legal challenges. A core problem in the digital world of social media revolves around the identifiability of individuals. Influencers often operate under pseudonyms or nicknames, which complicates legal disputes, particularly regarding injunctive relief claims.
Furthermore, formats like reaction videos often reference people indirectly without naming them. This significantly complexifies the legal landscape. The Dresden Higher Regional Court recently addressed these intricate issues in a groundbreaking decision (Ref. 4 W 213/24) dated 23.03.2024.
This ruling brought important clarifications concerning the identifiability of persons in social media and the necessity for legal protection in injunctive relief cases. The specific case involved a person mentioned in a TikTok livestream without being explicitly named, leading to legal consequences. The court had to determine how the person concerned was identifiable and what implications this had for potential claims for injunctive relief.
The Dresden Higher Regional Court’s decision is highly significant for practical application. It establishes greater legal certainty in an increasingly relevant domain of media law.
Identifiability in Social Media: Beyond Explicit Naming
The Dresden Higher Regional Court clarified that a person's identifiability does not strictly require them to be named. It suffices if the transmission of partial information provides the individual with reasonable grounds to believe they could be recognized within a broader or narrower circle of acquaintances.
This perspective aligns with the Federal Court of Justice's case law. It underscores that a person can also be recognized through contextual information, enabling a specific group of people to identify them. The crucial factor is not whether a majority of recipients, or even the "average recipient," can recognize the person.
Instead, it is sufficient if the reporting provides information to individuals who, based on their other knowledge, are capable of establishing the person's identity. The Dresden Higher Regional Court has thereby broadened the scope of protection for personal rights. It also acknowledges the realities of digital communication.
Especially in social networks, where influencers often use stage names or pseudonyms, identification can occur without explicit naming. This is possible as long as there is sufficient evidence to enable attribution.
Legal Protection for Injunctive Relief and Existing Settlements
Another pivotal aspect of the decision pertains to the need for legal protection in an application for injunctive relief. The Higher Regional Court of Dresden clarified that such a need does not exist if a similar obligation is already part of a court settlement that the applicant could enforce.
In the specific case, the defendant had previously agreed in an earlier settlement not to make any future statements about the applicant. This commitment also encompassed the statements currently in dispute. Therefore, the applicant could have enforced this existing court settlement instead of initiating new court proceedings.
The court emphasized the broad scope of the respondent's obligation. She was prohibited from commenting on the applicant's person at all in the general public and on social platforms. For a breach of this obligation, it is irrelevant whether the applicant's personal rights were violated. The obligation to cease and desist existed independently.
This principle applies not only to the explicit naming of the applicant but also to statements where the applicant is identifiable. Such statements constitute a core infringement, similar to direct naming.
Practical Implications for Influencers and Legal Professionals
The Dresden Higher Regional Court's decision carries far-reaching consequences for practice. It brings greater clarity to an increasingly vital area of media law. The ruling makes it clear that the identifiability of a person in digital communication, particularly on platforms like TikTok, is broadly defined and not restricted to direct naming.
Influencers and other social media actors must recognize that even indirect references to individuals can have legal repercussions if sufficient evidence for identification exists. Simultaneously, the decision highlights the significance of existing legal agreements, such as court settlements, which may already include injunctive obligations.
Lawyers and their clients should meticulously review existing agreements. If necessary, they should enforce these agreements before pursuing new legal actions. This approach can save time and money while ensuring the effective enforcement of claims.
Conclusion
Ultimately, the Dresden Higher Regional Court's decision reinforces the protection of personal rights in social media. It fosters greater legal certainty for all parties involved. This ruling stresses the necessity for careful and responsible handling of information and statements about others in the digital realm, offering valuable guidance for legal practice.