Imprint on Twitch/YouTube: Fine according to § 11, 5 TMG?

Introduction to the obligation of an imprint

The imprint obligation is a central element of German law that serves to ensure transparency and accountability of content on the Internet. It is a legal requirement that states that anyone who posts commercial or professional content online is obliged to provide an imprint. An imprint gives users the opportunity to identify the provider of a service or goods and to contact them if necessary. This increases transparency and builds trust with users while ensuring accountability for published content.

The legal basis for the imprint obligation is the German Telemedia Act (TMG) and, since November 2020, the Interstate Media Treaty (MStV), which replaced the previous Interstate Broadcasting Treaty. The TMG essentially regulates all electronic information and communication services, which also include Internet sites. The MStV, on the other hand, regulates the legal framework for broadcasting and new media in Germany.

Both sets of rules play a critical role in regulating online content, including content on streaming platforms such as Twitch and YouTube. The scope of application of these regulations is particularly interesting, as they are applicable not only to conventional websites, but also to social media profiles, blogs, online stores, and even streaming platforms.

For further information on the imprint obligation, the concrete requirements and their application in the context of Twitch and YouTube, I refer to an older article of mine. Here you will find detailed information and answers to frequently asked questions on this topic.

Open questions regarding the imprint obligation

Despite the clear legal regulations requiring the imprint, there are still some gray areas and open questions when it comes to the exact implementation on platforms like Twitch and YouTube. A central point of discussion here is, for example, the question of whether it is sufficient to state the agency in the imprint. In particular, the issue is whether streamers and YouTubers who are represented by an agency can include their 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 in the imprint is sufficient. Many streamers and YouTubers are known under pseudonyms and would like to use them in their imprint as well. But is that legally permissible? There is more information about this in this link.

Furthermore, it is unclear whether a simple link to an external website that contains the imprint is sufficient to comply with the imprint obligation. This is discussed in detail in this paper.

A particularly tricky and unclear question is who actually runs a Twitch or YouTube channel. Is it the platform itself, i.e. Twitch or YouTube, or is the respective streamer or YouTuber the operator? In addition, 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 are of considerable importance not only legally, but also in terms of their impact on practice.

Current developments regarding the imprint obligation

Just yesterday, a remarkable incident occurred that should make the industry sit up and take notice: a Twitch streamer from one of my agency clients received an email from a state authority asking him to set up an imprint on his channel. Should he fail to comply with this request, he may be subject to a fine pursuant to Section 11 TMG in conjunction with Section 5 TMG (up to 50,000 euros). This represents an unprecedented intervention by an agency that could have far-reaching implications for the industry.

The explosive nature of this incident arises in particular from the fact that warning letters from competitors for violations of the imprint have become considerably more difficult due to changes in the Unfair Competition Act (UWG) in 2020. Therefore, a kind of gray area could form so far, in which the imprint obligation on platforms such as Twitch and YouTube was not always fully complied with.

However, the intervention of the state authority could now be accompanied by a significant tightening of the handling of the imprint obligation. The threat of a fine clearly shows that the authorities are prepared to enforce the legal requirements and punish violations. This could have far-reaching effects on all streamers and YouTubers who are commercially active and do not yet have an imprint on their channels. It is strongly recommended to closely monitor these developments and to seek legal advice if necessary.

In this case, I was able to find an arrangement with the authority to avert the fine proceedings. This included 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 has to be careful. If a streamer does not have an agency, he cannot avoid a correct imprint if he does not want to receive fines according to the TMG in the future.

Conclusion

It looks like authorities are now starting to take active action and oblige streamers as well as YouTubers to provide a correct imprint. This marks a turning point and emphasizes the importance of carefully reviewing which disclosures are mandatory and which are not. The potential consequences of ignoring these obligations should not be underestimated.

However, it is important to emphasize that influencer agencies should be cautious when asked to provide their masthead. Being classified as an “operator” of a channel can have significant legal consequences. This can be particularly problematic if warnings and lawsuits come into play and the company’s own marketing contracts do not cover these situations. I’ve been involved in a few court cases here lately.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.