Currently, I am involved in a court case that, in addition to some other legal issues in the area of streaming, YouTube and influencers, also deals with the question of whether a “Youtuber”, of whom only the YouTube name is known, but not the real civil name or the stage name, can actually be sued.
I think that is not the case. This is because, as the Federal Court of Justice has just confirmed in 2019, a statement of claim under Section 253 para. 2 No. 1 ZPO contain, among other things, the name of the defendant. This usually requires that they be designated by name, but exceptions are conceivable. If a party is designated without stating its name in such a clear manner that there can be no doubt about its identity and position and it can be recognized by any third party from the party designation, this shall be sufficient. However, this should not be the case for a YouTuber creator. While the person may be known to some people, e.g. employees, marketers, possibly YouTube itself. But the person is just NOT identifiable for “everyone” beyond doubt and certainly not for example for a bailiff who has to execute a judgment or another court decision in case of doubt.
This was also the case decided by the Federal Supreme Court in 2019. There, a plaintiff had ordered a barbecue on the Internet on a website allegedly operated by a company “Pewe24” and transferred the purchase price of 679.99 euros to an account. Since he never received the grill, he eventually filed a criminal complaint. The public prosecutor’s office informed him that it was conducting an investigation against unknown persons in connection with “Pewe24”. The investigating authorities had seized a credit balance in the account, which the plaintiff wanted to access. He therefore brought an action for repayment of the purchase price against “Mr. Mario Hummels (alias), of unknown residence” and applied for public service of the statement of claim. The district court denied the motion. The immediate appeal against this was unsuccessful. The plaintiff appealed against this with an admitted appeal on a point of law and was also unsuccessful.
In the case at hand, the Federal Court of Justice did not see any compelling reason for not applying the principle arising from Section 253 (1) of the German Civil Code (Bürgerliches Gesetzbuch). 2 No. 1 of the Code of Civil Procedure should be (further) relaxed with regard to the particularities of the individual case. In particular, this does not result from the fact that the plaintiff is not at fault for the lack of a party name identifying the defendant, because he could not determine the identity of the tortfeasor. The fact that the lack of identifiability is based on the fact that the person claimed against is fraudulently concealing his identity was also considered irrelevant by the Federal Court of Justice in this context.
Nothing else can apply to a “YouTube account”. Even if the YouTuber (m/f/d) – possibly – intentionally fails to comply with his/her obligations under § 5 TMG, this cannot lead to a potential plaintiff/warning party taking action against “anyone”. This is especially true when – as with YouTube – it is not even certain whether the person in a video is a natural person at all, where that person resides, or whatever. This becomes even clearer with YouTubers, where possibly only the voice of a speaker is known. It is therefore recognized in supreme court case law that the admission of a “title against unknown” or a “title against the person concerned” is not compatible with the applicable legal situation.
People or companies whose rights are violated in a YouTube video may feel this is unfair. However, only the legislator can regulate a waiver of the statutory requirement of the debtor’s name, i.e. identifying name, in the enforcement order (or in the enforcement clause). If, however, irrespective of whether this is possible and of any impediments that may exist, the defendant must be identifiably designated in the title, this necessarily also applies to the statement of claim or the application for an interim injunction. This is because they show who is involved in the procedural legal relationship and against whom the subsequent judgment or order is issued. This position is, of course, strengthened in particular by the fact that YouTube itself can still remove a video or issue a strike, so that a potential infringer does not have to be put without rights. But if you don’t feel like taking action against YouTube or Google, you can’t make it easy for yourself in Germany and sue a pseudonym.
I’m excited to see how this plays out. What is clear is that you should not simply accept it if you are warned or sued as a YouTuber (be it via a delivery address or a marketing agency). I may be able to help with the defense here!