Social media law: Social media has fundamentally changed our daily lives in recent years. Many companies use social media as a marketing tool and platform to communicate with their customers and the general public.
However, this also raises numerous legal issues and challenges that need to be considered. In the following article, we will cover the most important legal aspects of social media and give you practical tips on how to act in a legally safe manner.
Contents
- Legal notice obligation on social media profiles
- Copyright aspects in social media
- Data protection in social media
- Advertising in social media
- Right to one’s own image in social media
- Right to one’s own image – children, babies and protected persons
- Liability for third-party content in social media
- Competitions in social media
- Infringements of personality rights in social media
- Social media guidelines for companies
- Social media and labour law
- Network Enforcement Act (NetzDG)
- Hashtags and trademark rights
- Legal notice requirements for online advertising
- Influencer Marketing
- Social media and the right to be forgotten
Legal notice obligation on social media profiles
In social media, sharing content and images is the order of the day. However, it should be noted that not every content may be shared without further ado. Content protected by copyright may not be published without the consent of the copyright holder. Even citing the source alone is not sufficient. Copyright infringement can lead to injunctive relief and claims for damages.
Copyright law in Germany is regulated in the Copyright Act (UrhG). It protects the intellectual creation of the author and regulates the exploitation of his works. Works within the meaning of the Copyright Act are literary, scientific and artistic works such as books, photos, music, films and software.
In social media, copyright infringements can quickly occur if content is shared without the author’s permission. This applies not only to images, but also to texts and videos. Therefore, companies and private individuals on social media should make sure that they only share content for which they have the necessary rights.
A widespread practice in social media is sharing other people’s content. It is important to know that sharing content does not automatically mean that you also have the right to publish it.
Copyright always remains with the author of the work. If you share other people’s content, you should make sure that you have permission from the author or that the content is under a free licence such as the Creative Commons licence.
There are also exceptions to the authorisation requirement. For example, the use of short quotations from works protected by copyright is permitted if they are embedded in a separate text and the source is correctly indicated. The use of images used within the framework of quotation rights is also permitted under certain conditions.
In summary, any use of copyrighted works in social media should be carefully considered. Works may only be published if one has the necessary rights to do so or if there is an exception to copyright.
Copyright aspects in social media law
Social media platforms offer numerous possibilities for sharing or distributing content such as images, videos or texts. However, this also gives rise to legal aspects, especially with regard to copyright. In this context, it is important to know the legal basics and to avoid copyright infringements.
Copyright law in Germany protects the intellectual creation of the author and regulates the exploitation of his or her works. The following aspects should be considered in connection with copyright and social media:
- Content may not be published without the consent of the author. This applies in particular to copyright-protected works such as texts, images and videos.
Citing the source alone is not sufficient to avoid copyright infringement. Rather, explicit permission from the author is usually required. - Sharing content for which you do not have permission can lead to injunctive relief and claims for damages.
- Even when using images that have already been published, you must make sure that you have permission from the author or that the content is under a free licence such as the Creative Commons licence.
Recommendation for action:
To avoid copyright infringement, companies and individuals on social media should make sure that they only share content for which they have the necessary rights. In case of doubt, it is advisable to contact a lawyer who can advise on questions concerning copyright and social media.
In summary, copyright in social media is an important aspect that should not be neglected. Companies and private individuals should therefore familiarise themselves with the legal principles and seek advice if necessary.
Data protection in social media
The DSGVO (General Data Protection Regulation) also applies to social media. Companies must therefore ensure that they only process personal data within the scope of the DSGVO. The following aspects should be observed in connection with data protection and social media:
- Companies must inform users about the processing of their data and obtain consent for the processing.
- Users must be informed about their rights, such as the right to access, delete or correct their data.
- Appropriate technical and organisational measures must be taken to ensure the security of personal data.
- When using analysis tools, the requirements of the GDPR must be complied with. For example, IP addresses must be recorded anonymously.
In order to meet the requirements of the GDPR in social media, companies should carefully check and comply with the data protection provisions of the respective platforms. In addition, users should be informed about the processing of their data and obtain consent for the processing.
Companies should also take appropriate technical and organisational measures to ensure the security of personal data. In case of doubt, it is advisable to contact a lawyer who can advise on questions regarding data protection and social media.
Social media law: In summary, data protection in social media is an important aspect that should not be neglected. Companies and users should therefore carefully check and comply with the data protection regulations of the respective platforms in order to ensure the protection of personal data.
Advertising in social media
Advertising in social media is subject to special rules. Companies must label their advertising as such. Influencers must also label their advertising as such and must not engage in misleading advertising. The following aspects should be observed in connection with advertising and social media:
- Advertising must be labelled as such in order not to mislead consumers.
- Influencers must label advertising as such to ensure a clear separation between editorial content and advertising.
- Misleading advertising is not permitted and can lead to warnings and claims for damages.
- When using testimonials, the fact of remuneration or compensation must be disclosed.
In order to comply with the requirements related to advertising and social media, companies and influencers should clearly label their advertising as such and avoid misleading advertising. When using testimonials, the fact of remuneration should be disclosed.
In case of doubt, it is advisable to consult a lawyer who can advise on issues relating to advertising and social media. In summary, advertising in social media is subject to special rules that should be observed at all costs in order not to deceive consumers and to avoid legal consequences.
Right to one’s own image in social media
Countless images and videos are shared on social media every day. It is important to observe the right to one’s own image. Basically, everyone has the right to their own image and can determine whether and how images of them are published. The following aspects should be considered in connection with the right to one’s own image and social media:
- Images may only be published with the consent of the person depicted.
- Consent must be explicit and voluntary.
- In the case of minors, the consent of the parents or legal guardian must be obtained.
- The consent of the person depicted must also be obtained for public events.
- In the event of violations of the right to one’s own image, injunctive relief and claims for damages may be asserted.
In order to protect the right to one’s own image in social media, companies and private individuals should ensure that they have obtained the consent of the persons depicted.
Here it is important that the consent is explicit and voluntary and that the consent of the parents or legal guardian is also obtained in the case of minors. In the event of violations of the right to one’s own image, injunctive relief and claims for damages may be asserted.
Right to one’s own image – children, babies and protected persons
The right to one’s own image is an important component of the right of personality. Particularly in the case of minors and children in need of protection, parents or legal representatives should ensure that no rights are violated.
Social media law: The following aspects should be observed in connection with the right to the image of minors and charges:
- The special protection of personal rights applies to children and children under protection. In principle, the publication of images requires the consent of the parents or legal representatives.
- Personal rights should also be observed when publishing pictures of children and babies on social media platforms. In particular, care should be taken not to show sensitive or intimate areas.
- Publishing pictures of children and babies also involves risks and dangers. Images can be downloaded by third parties, misused or used for inappropriate purposes. There is also a risk of identity theft or misuse of images for cyberbullying or stalking.
- It is advisable to protect the privacy of children and babies and not to post private images on publicly accessible platforms.
In order to avoid legal consequences related to the right to the image of minors and protected persons, parents or legal representatives should ensure that consent to publish images has been obtained.
When publishing images, privacy rights should be respected, in particular care should be taken not to show sensitive or intimate areas. It is advisable to protect the privacy of children and babies and not to publish private pictures on publicly accessible platforms.
In summary, the right to the image also applies to minors and protected persons. Publication of images generally requires the consent of the parents or legal representatives.
It is important to respect personal rights and to protect the privacy of children and babies. The publication of images also involves risks and dangers, so parents and legal representatives should be sensitive when publishing image material.
Liability for third-party content in social media
In social media, users can not only share or link to their own content, but also to third-party content. In this context, it is important to consider the liability for third-party content. The following aspects should be considered in connection with liability for third-party content and social media:
- Operators of social media platforms are generally not responsible for third-party content.
- However, liability may exist if the operator has knowledge of illegal content and does not remove it immediately.
- Users who share or link to third-party content can be held liable for this content under certain circumstances.
- When using links, care must be taken to ensure that no illegal content is linked.
To avoid liability for third-party content in social media, users should take care not to share or link to unlawful content. When using links, care should also be taken that no illegal content is linked.
Operators of social media platforms should ensure that they react immediately if they become aware of illegal content.
Liability for third-party content in social media is an important issue. Users and operators of social media platforms should familiarise themselves with the legal basis and, if in doubt, seek advice to avoid legal consequences.
Sweepstakes in social media
Sweepstakes in social media are very popular to increase the reach of companies. Here it is important to observe the legal requirements. The following aspects should be considered in connection with competitions and social media:
- Sweepstakes must be transparent and fair.
- It must be clearly regulated who is entitled to participate and which conditions must be fulfilled.
- The conditions of participation must be formulated clearly and understandably.
- There must be no obligation to buy.
- The implementation of the competition must comply with data protection regulations.
In order to conduct sweepstakes in social media in a legally compliant manner, companies should ensure that the conditions of participation are clearly and understandably formulated and comply with the legal requirements.
Social media law: There must be no obligation to buy and the implementation of the competition must comply with data protection regulations. In case of doubt, it is advisable to contact a lawyer who can advise on questions concerning sweepstakes and social media.
Infringements of personal rights in social media
Infringements of personality rights in social media can take various forms. In this context, it is important to protect the right of personality. The following aspects should be considered in connection with violations of personality rights and social media:
In order to avoid violations of personality rights in social media, users and companies should ensure that they do not engage in insults, defamation or bullying. Operators of social media platforms should also ensure that they are aware of violations of personality rights and remove them immediately.
In the case of violations of the right of personality, those affected can claim injunctive relief and damages. In case of doubt, it is advisable to contact a lawyer who can advise on questions concerning the right of personality.
- Violations of personality rights can occur, for example, in the form of insults, defamation or mobbing.
- Everyone has a right to respect for their personality and private life.
- In the case of violations of personality rights, affected persons can claim injunctive relief and damages.
- Operators of social media platforms can also be held responsible in certain cases, e.g. if they have knowledge of
- E.g. if they are aware of violations of personality rights and do not remove them immediately.
Social media law: Companies and users should ensure that they respect the right of personality and seek legal advice in case of doubt. Operators of social media platforms should ensure that they are aware of violations of personality rights and remove them immediately to avoid legal consequences.
Social media guidelines for companies
Social media guidelines are an important measure for companies to ensure that their use of social media is legally compliant and goal-oriented. They provide employees with clear rules and guidelines to ensure that the use of social media is in line with the corporate strategy and legal requirements.
The guidelines should cover all relevant aspects, such as data protection, personal rights, copyrights and advertising rules. The guidelines should not only cover the use of social media by the employees themselves, but also regulate the handling of content from customers and users on the company’s social media channels.
Overall, social media guidelines serve to ensure a consistent and professional presence of the company in social media and to minimise the risk of legal consequences.
Social media law and labour law
The use of social media can also have an impact on the employment relationship. Here, it is important to pay attention to labour law. The following aspects should be considered in connection with social media and labour law:
- Employees should ensure that they fulfil their work duties and do not disclose confidential information.
- Employers can restrict the use of social media as part of their right to issue instructions in order to protect the employment relationship and the interests of the company.
- Employees can be warned or dismissed in the event of violations of the duties under the employment contract, e.g. the dissemination of confidential information.
- In the case of mobbing or insults in connection with the employment relationship, workers can claim injunctive relief and damages.
To avoid legal consequences related to social media and labour law, workers should ensure that they fulfil their work duties and do not disclose confidential information.
Employers can restrict the use of social media within the scope of their right to issue instructions in order to protect the employment relationship and the interests of the company. Employees can be warned or dismissed if they violate their contractual obligations.
In the case of mobbing or insults, employees should seek injunctive relief and claim damages. In case of doubt, it is advisable to consult a lawyer to avoid legal consequences.
In summary, the use of social media can also have an impact on the employment relationship. Employees should fulfil their work duties and not disclose confidential information, while employers can restrict the use of social media within the scope of their right to issue instructions.
Employees can be warned or dismissed in the event of violations of their contractual duties, while claims for injunctive relief and damages can be asserted in the event of mobbing or insults in connection with the employment relationship.
Network Enforcement Act (NetzDG)
The Network Enforcement Act (NetzDG) is a German law that came into force on 1 October 2017. It regulates the responsibility of social networks for illegal content on their platforms. The following aspects should be considered in connection with the Network Enforcement Act:
- The law applies to social networks with more than 2 million registered users in Germany.
- Social networks are obliged to check and, if necessary, delete certain unlawful content within 24 hours of receiving a complaint.
- This includes in particular insults, incitement of the people, threats and criminal content.
- The networks are responsible for implementing the law and must set up a complaint and reporting procedure.
- High fines can be imposed for violations of the NetzDG.
§ 1 NetzDG: Scope of Application
The Act applies to providers of telemedia services who operate social networks and have more than 2 million registered users in Germany.
§ Section 2 NetzDG: Responsibility
Social network providers are responsible for illegal content uploaded by users on their platforms.
§ 3 NetzDG: Complaint procedure
Social network providers must establish an effective and transparent complaint and reporting procedure that enables users to report unlawful content.
§ Section 4 NetzDG: Complaints Procedure
Providers of social networks are obliged to investigate and, if necessary, delete unlawful content within 24 hours of receiving a complaint.
§ 5 NetzDG: Reporting obligations
Providers of social networks must report at regular intervals on the implementation of the Act and make it publicly available.
Social media law: In order to comply with the Network Enforcement Act, social network providers should establish an effective complaint and reporting procedure and ensure that unlawful content is reviewed and, if necessary, deleted within 24 hours.
High fines can be imposed for violations of the NetzDG. Companies should comply with the legal requirements and seek legal advice if necessary to avoid legal consequences.
Hashtags and trademark rights
Hashtags have become an integral part of social media communication and are used by companies and users alike. However, when using hashtags, trademark rights should also be observed. The following aspects should be considered in connection with hashtags and trademark rights:
- The use of brand names as hashtags can constitute a violation of trademark rights, especially if the impression is created that there is a connection between the company and the hashtag.
- The use of brand-like terms as hashtags can also be problematic.
- It is advisable to conduct a trademark search before using hashtags to ensure that no trademark rights are infringed.
- Companies should protect their own trademarks by using them as hashtags and, if necessary, take action against the use of trademark-infringing hashtags.
Lawyer’s tip: To avoid legal consequences in connection with hashtags and trademark rights, companies should ensure that they do not violate any trademark rights of third parties by using brand names as hashtags, for example.
It is advisable to conduct a trademark search before using hashtags to ensure that no trademark rights are violated. Companies should protect their own trademarks by using them as hashtags and, if necessary, take action against the use of trademark-infringing hashtags.
However, companies should ensure that they do not infringe on the trademark rights of third parties and protect their own trademarks where appropriate. Before using hashtags, it is advisable to conduct a trademark search to avoid possible infringements.
Legal notice obligation for online advertising
Social media law: The imprint obligation applies not only to one’s own website, but also to online advertising. The following aspects should be considered in connection with the imprint obligation for online advertising:
- Online advertising must include an imprint that contains all the required information according to § 5 TMG (Telemedia Act).
- This includes, among other things, the name and address of the provider, an e-mail address, a telephone number and, if applicable, the VAT identification number.
- For social media posts that are promotional in nature, an imprint must also be provided.
- Online directories and yellow pages must also contain an imprint.
In order to avoid legal consequences in connection with the imprint obligation for online advertising, companies should ensure that all online advertising activities contain an imprint that includes all required information according to § 5 TMG.
This also applies to social media posts that are promotional in nature, as well as entries in online directories and yellow pages. Businesses should ensure that the imprint is easily accessible and easy to find at all times.
Businesses should ensure that all online advertising activities include an imprint that contains all the required information according to § 5 TMG. Companies should ensure that the imprint is easily accessible and easy to find at all times to avoid legal consequences.
Influencer Marketing
Influencer marketing has become an important part of social media advertising. Here, the reach of influencers is used to promote products or services.
To avoid legal consequences in connection with influencer marketing, companies should ensure that the labelling as advertising is clear and easily recognisable.
The labelling should not be hidden or unclear, but should be directly in the text or image and clearly marked as advertising. Companies should ensure that influencers actually use the products or services and give their honest opinion about them.
The cooperation between the company and the influencer should be transparent.
The following aspects should be considered in connection with influencer marketing:
- In influencer marketing, it must be made clear that it is advertising. The labelling must be clear and easily recognisable.
- The labelling should not be hidden or unclear, but should be directly in the text or in the image.
- The labelling should not be hidden in a hashtag, but clearly marked as advertising.
- It is important that the influencers actually use the products or services and give their honest opinion about them.
- The cooperation between the company and the influencer should be transparent.
In summary, in influencer marketing, the labelling as advertising must be clear and unambiguous to avoid legal consequences. Companies should ensure that influencers actually use the products or services and give their honest opinion. The cooperation between companies and influencers should be transparent.
Social media and the right to be forgotten
The right to be forgotten is an important aspect in the context of social media. It states that personal data must be deleted upon request if they are no longer necessary or are processed unlawfully. The following aspects should be considered in relation to the right to be forgotten and social media:
- Users have the right to have their personal data deleted.
- The right to be forgotten also applies to social media.
- Personal data must be deleted if it is no longer necessary or is processed unlawfully.
- In the event of violations of the right to be forgotten, data subjects can claim injunctive relief and damages.
Recommendation for action:
To ensure the right to be forgotten on social media, companies should ensure that they only process personal data within the scope of the GDPR and delete it upon request.
Private individuals should also be aware that they have the right to have their personal data deleted if it is no longer necessary or is processed unlawfully. In the event of violations of the right to be forgotten, data subjects can seek injunctive relief and claim damages.
Social media law: In summary, the right to be forgotten also plays an important role in social media. Companies and individuals should ensure that they only process personal data within the scope of the GDPR and delete it upon request in order to avoid legal consequences.