Legal challenges for influencers when making critical statements about companies

In current legal practice, there is an increasing number of cases in which influencers are involved in legal disputes due to critical comments about third parties. This problem extends not only to comments about companies, but also to all statements about third parties, including private individuals, organizations and public institutions. The legal assessment of such comments requires a differentiated approach, taking into account various areas of law, in particular personality rights, competition law and media law. The relevant legal aspects and possible legal consequences of infringements are discussed below in order to provide sound legal guidance.

Constitutional and civil law framework for statements by influencers

The statements made by influencers are primarily subject to the protection of freedom of expression pursuant to Art. 5 para. 1 GG. However, this fundamental right is not guaranteed without limits, but finds its limits in the general laws, the statutory provisions for the protection of young people and in the right to personal honor (Art. 5 para. 2 GG). In the legal assessment of influencer statements, a balance must always be struck between freedom of expression on the one hand and the interests of third parties worthy of protection on the other. The distinction under civil law between factual claims and value judgments is of central importance here. Statements of fact are subject to a strict duty of truth, the violation of which can result in injunctive relief and claims for damages. Value judgments, on the other hand, enjoy greater protection as long as they do not exceed the threshold of defamatory criticism. Influencers are therefore required to make a clear distinction between facts and personal assessments in their statements and to respect the personal rights of third parties. This includes, in particular, protection against defamatory statements, slander and libel in accordance with Sections 185 et seq. of the German Criminal Code (StGB).

Press law classification of influencer activities

The legal qualification of influencers as press within the meaning of Art. 5 para. 1 sentence 2 GG is the subject of controversial legal discussions. Such a classification would have far-reaching consequences with regard to the rights and obligations of influencers. The information-providing and opinion-forming function of many influencer activities speaks in favor of qualification under press law. On the other hand, there are arguments such as the frequent lack of editorial structures and the often close integration with advertising activities. Case law currently tends to take a differentiated approach, which requires a case-by-case assessment. The decisive criteria here are the type of information conveyed, the degree of journalistic preparation and the regularity of reporting. A blanket classification of influencers as press is not possible under the current legal situation. Nevertheless, influencers can claim protection under press law in certain constellations, which must be examined on a case-by-case basis. This may be the case in particular for investigative research or the critical examination of socially relevant topics.

Specific legal restrictions for statements by influencers

When distributing content via third parties, influencers must observe various legal restrictions. The ban on defamatory criticism is a key limit. Statements that are primarily aimed at defaming a person or organization and have no factual reference are legally inadmissible. The distinction between permissible criticism and defamation requires careful legal examination, taking into account all the circumstances of the individual case. Competition law aspects must be taken into account in particular when making statements about competitors or in the context of product comparisons. The provisions of the Unfair Competition Act (UWG), which prohibit misleading business practices and the disparagement of competitors, are relevant here. The obligation to label advertising in accordance with Section 5a (4) UWG must be strictly observed in order to ensure transparency and avoid legal consequences. When using images or quotes to support statements, the copyright provisions, in particular the right to quote under Section 51 UrhG, must be observed. Observing these various legal restrictions requires influencers to have a high degree of legal sensitivity and, if necessary, to seek expert legal advice.

Legal consequences of violations of the law

Influencers face various legal consequences if they exceed the legal limits. The first step is often a warning letter with a request to submit a cease-and-desist declaration with a penalty clause in accordance with Section 1004 (1) sentence 2 BGB analogously in conjunction with § Section 823 para. 1 BGB. In urgent cases, those affected can apply for a temporary injunction in accordance with Sections 935 and 940 of the German Code of Civil Procedure (ZPO) in order to prevent unlawful statements in a timely manner. In the event of demonstrable economic damage, claims for damages pursuant to Section 823 (1) BGB may be considered, the amount of which depends on the actual damage. In certain cases, particularly in the case of factual allegations, those affected can assert a claim for publication of a counterstatement, the requirements for which are governed by the respective state press laws. In serious cases, such as defamation (Section 187 StGB) or slander (Section 186 StGB), there is a risk of criminal investigations that go beyond the consequences under civil law. The range of possible legal consequences underlines the need for careful legal scrutiny of statements about third parties before they are published.

Preventive legal measures

To minimize legal risks, it is advisable for influencers to implement preventative measures. Thorough verification of factual claims using several independent sources is essential in order to comply with the principle of truthfulness and reduce the risk of false statements. The explicit labeling of value judgments as personal opinions serves to make use of the increased protection of freedom of expression. It is advisable to refrain from personal attacks and derogatory statements in order to avoid falling into the realm of abusive criticism. Obtaining legal advice on potentially critical content is strongly recommended in order to identify and minimize legal risks at an early stage. Establishing an internal approval process for sensitive topics, which provides for multiple checks of content before publication, can offer additional legal security. Regular training in media law is recommended in order to keep legal knowledge up to date and raise awareness of potential legal pitfalls.

Conclusion and legal perspectives

The legal assessment of statements made by influencers about third parties requires a differentiated approach, taking into account freedom of expression on the one hand and the interests of third parties worthy of protection on the other. The increasing importance of influencers in the digital public sphere suggests that case law in this area will continue to develop. A conclusive legal classification of influencers as press is still pending and could be substantiated in the future by supreme court decisions or legislative initiatives. It is essential for influencers to be aware of the legal framework and to seek legal advice in case of doubt. The dynamic development in this area of law also offers opportunities to professionalize the industry by deepening media law expertise. It is to be expected that case law will provide further clarity regarding the legal boundaries for influencer statements in the coming years. Until then, influencers are advised to exercise increased care and legal sensitivity when making statements about third parties in order to avoid legal disputes and to fulfill their role as responsible players in the digital communication landscape.

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.