The German Telemedia Act, a legislation which is far from being considered even remotely controversial, is actually posing a great risk to micro-influencers. For purposes of this post, micro-influencers are influencers with a following between 1,000 and 100,000 followers (CMS WiRE, December 2018). Instead of enabling such influencers to safely start posting on the internet with a view to earning money from their online content creation, it forces them to publicly share private data in order to continue to be able to post. Let us take a look at this odd phenomenon:
The big fear of small content creators are legal notices (Impressum in German) which are mandatory for certain websites and even social media accounts. The Federal Ministry for Justice and Consumer Protection (BMJV) describes a legal notice as a sort of “business card” for websites, enabling visitors of the websites to identify who is responsible for the websites (BMJV, Impressumspflicht). But the comparison drawn by the Ministry is far from perfect: a business card gives its creator a choice regarding which information to include. For some, merely including a URL and an email address may be enough. Others may wish to include an office address.
When a website falls under a duty to provide a legal notice (Impressumspflicht), there is no choice as to what information will be included. Instead, the law lays down the requirements for which information needs to be included on the website. This can pose a danger to micro-influencers on the internet. This post will first examine the requirements for a legal notice as applicable to micro-influencers and will then consider why the German Impressumspflicht poses a risk to such influencers.
Impressumspflicht – When Does it Arise?
Whether someone is under a duty to provide a legal notice on their website is regulated by § 5(1) of the German Telemedia Act (BMJV, Telemediengesetz, § 5). The translation used here is by the Hunton Privacy Blog(emphasis added).
Service providers must render the following information easily, directly and permanently accessible for telemedia which are offered commercially, generally in return for a fee
The emphasized part of § 5(1) above is what makes this law applicable to micro-influencers. It can be enough for a website owned by a micro-influencer to display ads (for example thorough Google AdSense) to fall under this law (BMJV, Impressumspflicht). But also the use of affiliate links or brand sponsorships may trigger this provision as such links and sponsorships generate commercial profit for the content creator. This means that even content creators who do not have their own website, but merely use social media accounts, may have to provide an legal notice for these accounts.
Micro-influencers rely on such commercial opportunities in order to make money from their platform. At least one purpose of their platform is often a commercial one. But micro-influencers cannot easily be compared to businesses or significantly bigger influencers who also pursue commercial objectives with their online presence. The big difference between them is financial means. Micro-influencers can charge significantly less for brand deals and may also make significantly less money off affiliate links and the like due to the size of their audience. They are nonetheless held to the same standard for a legal notice which may force some of them to reveal their personal address in order to legally continue posting.
The Scope & Risk of the Impressumspflicht for Micro-Influencers
It is the scope of the Impressumspflicht which really puts small creators at risk. The full requirements of what needs to be included in a legal notice can be found in § 5 of the German Telemedia Act, but the ones likely to be relevant to micro-influencers are the following:
1) Full name
2) Mailing address (P.O. Box not sufficient)
3) A way of contacting the person quickly (usually email address and a phone number)
Number one will pose little to no problem for micro-influencers. And even though number three can be trickier, there are ways around putting your personal phone number there (for example buying a cheap phone with a different SIM card for the purpose of using it as a contact form for your legal notice).
But there is no easy way around requirement number two. The BMJV makes it expressly clear that a P.O. Box does not suffice as an address for the purposes of a legal notice (BMJV, Impressumspflicht). Micro-influencers are usually not at a stage where they can afford to rent office space for their work – and it is also usually not necessary for their work. Many micro-influencers create content from their living rooms and post from their home. The only address that they have is, therefore, their actual address. This puts micro-influencers in a dilemma: Commercialise your platform and risk putting your address out there, or make no money from your platform at all. This law actively discourages small content creators from making a step from having a platform to commercialising it since the risk of putting your personal address publicly on the internet is a big risk, especially for those who are building an online audience.
Need for Reform
The rise of micro-influencers makes a change in this law necessary in order to protect these creators’ safety. Creators who are starting out with making often only a few euros a month should not have to put their personal address publicly on the internet in order to avoid fines of up to 50,000 euros (IONOS, February 2020) for not having a legal notice including an address. The law should be open to protecting these individuals by not blindly imposing this requirement on anyone pursuing a commercial objective with their online presence. One option for making the law a better one for micro-influencers would be an application form to be exempt from this requirement. An even easier way of protecting micro-influencers would be allowing P.O. Boxes as addresses. This would also still enable visitors of the influencers' online presence to contact the content creators via mail, but protect the micro-influencers significantly more.
Ismail, Kaya. “Social Media Influencers: Mega, Macro, Micro or Nano.” CMSWire.com, CMSWire.com, 10 Dec. 2018, www.cmswire.com/digital-marketing/social-media-influencers-mega-macro-micro-or-nano/.
“Impressumspflicht.” BMJV, Bundesministerium Für Justiz Und Verbraucherschutz, www.bmjv.de/DE/Verbraucherportal/DigitalesTelekommunikation/Impressumspflicht/Impressumspflicht_node.html.
“Impressum Law: What You Need to Know about Special Website Credits.” IONOS Digitalguide, 1&1 IONOS Inc., 18 Feb. 2020, www.ionos.com/digitalguide/websites/digital-law/a-case-for-thinking-global-germanys-impressum-laws/.
“Telemediengesetz (TMG)§ 5 Allgemeine Informationspflichten.” § 5 TMG - Einzelnorm, Bundesamt Für Justiz , www.gesetze-im-internet.de/tmg/__5.html.
Translation of the Telemediengesetz:
“Translation: Telemedia Act (TMA).” Hunton Privacy Blog, Hunton Andrews Kurth LLP, www.huntonprivacyblog.com/wp-content/uploads/sites/28/2016/02/Telemedia_Act__TMA_.pdf.