Reaction videos: permissible quotation or infringement of rights? (Part 2)
In the first part of this two-part article, we examined the extent to which reaction videos pose copyright risks. However, reaction videos may not only infringe third-party copyright but may also undermine the dignity of those whose content is the subject of the reaction video.
Case-by-case assessment required: Reaction videos may infringe personality rights
When assessing whether a reaction video infringes personality rights, it is necessary to examine each case carefully to determine if a statement is protected by freedom of expression or constitutes an infringement of personality rights.
Expressions of opinion are generally permitted – but untrue allegations of fact are not
Case law determines whether a statement is permissible by weighing up the conflicting interests. In such cases, the person making the statement typically invokes freedom of expression, whilst the person concerned may invoke their general personality right. Which fundamental right prevails depends largely on the circumstances of the individual case.
In principle, however, expressions of opinion are specially protected by the freedom of expression set out in Article 5 (1), first sentence, German Basic Law. They are therefore generally permissible provided they do not cross the line into defamatory criticism. An expression of opinion is characterised by subjective evaluative elements of personal belief. In the context of social media, this is the case, for example, when one influencer evaluates the behaviour or content of another influencer. In such cases, even harsh criticism is permissible in principle. The only exception to this rule applies to assessments that are intended solely to disparage the person concerned without forming part of an objective dispute. Such defamatory criticism may infringe upon a person's general personality rights. Formal insults (Formalbeleidigungen) are prohibited under these principles. However, the courts set particularly high barriers in this regard. For example, Frankfurt am Main Higher Regional Court ruled last year that describing an influencer as a "hatefluencer" may constitute a permissible expression of opinion (see Frankfurt am Main Higher Regional Court, judgment of 17 July 2025 – 16 U 80/24).
In the case of allegations of fact – that is, statements that can be verified – the threshold for unlawfulness is crossed more readily. The decisive factor here is whether they are true. True allegations of fact must often be accepted, whereas untrue allegations of fact regularly infringe general personality rights.
Even influencers need to do their research
As a general rule, the person making a statement is responsible for proving its truthfulness in the event of a dispute. For this reason, it is advisable to carry out thorough research before publishing any facts – including on social media. For private individuals, the requirements for thorough research are significantly less stringent than those for the press. Under the so-called layperson's privilege, private individuals may rely on uncontested press reports when making claims that lie outside the scope of their personal experience and control. The layperson's privilege takes account of the fact that private individuals do not have the time or the means to conduct comprehensive research into all the facts themselves. Nevertheless, they should not be excluded from public debate.
It has not yet been conclusively clarified whether the layperson's privilege also applies to influencers. The scope of application is not limited to individuals, but also covers, for example, small, regional online newspapers or associations (see Cologne Regional Court, judgment of 26 April 2017 – 28 O 162/16). In the case of influencers, however, it is important to distinguish whether they are making a statement as a private individual or in the context of their self-employment. As the German Federal Court of Justice (BGH) has clarified in its case law on influencers, the actions of influencers may constitute a commercial practice. Many influencers operate as businesspeople and generate substantial income through their activities on social media. Against this background, it seems difficult to justify applying the layperson's privilege to professional influencers. The need for protection that exists for private individuals does not apply here, because anyone who publishes content on social media for commercial purposes has the time and financial resources to carefully verify the accuracy of that content.
When the line between a layperson and a professional influencer is crossed depends very much on the individual case. In any event, commercial activity is to be assumed in posts in which an influencer offers and promotes goods and services (see German Federal Court of Justice, judgment of 9 September 2021 – I ZR 90/20 (Influencer I)). However, even posts that are not themselves advertisements may be classified as contributing to commercial activity if the influencer's social media activities are, as a whole, of a professional nature. Indicators of a professional presence of influencers include, for example, the number of followers, the amount of promotional content or the inclusion of a legal notice. Social media influencers who, when publishing content, are generally acting in the context of their commercial or self-employed professional activities must observe journalistic standards of care and cannot invoke the layperson's privilege.
Competitors are subject to particularly strict standards
As outlined, the actions of influencers can cross the line into commercial activity. Where two influencers have a concrete competitive relationship with one another as suppliers or consumers of goods or services, they are to be classified as competitors under section 2 (1) no. 4 German Unfair Competition Act. In the case of statements made about competitors, in addition to the fundamental balance between freedom of expression and the general personality right, it must be taken into account that the statement may constitute disparagement of a competitor in accordance with section 4 no. 1 German Unfair Competition Act.
Influencers are competitors within the meaning of section 2 (1) no. 4 German Unfair Competition Act if they are in a concrete competitive relationship with one another as suppliers or consumers of goods or services. Whether such a relationship exists must be carefully assessed on a case-by-case basis. Frankfurt am Main Higher Regional Court ruled out a competitive relationship between a streamer and an influencer on the grounds that the mere fact that both parties operate in the streaming market is not sufficient to establish such a relationship (see Frankfurt am Main Higher Regional Court, judgment of 17 July 2025 – 16 U 80/24). However, if influencers target a similar customer base and vie for advertising clients there, the line to a competitive relationship can quickly be crossed. In such cases, the particularly strict provisions of competition law apply.
In the case of commercial posts directed at competitors, the scope of permissible statements is significantly more restricted than that of non-commercial statements. The reason for this restriction on freedom of expression is that, in addition to protecting the individual personality rights of the competitor affected by a statement, the protection of fair competition as a collective protected interest must also be taken into account. In such cases, where an expression of opinion also serves commercial purposes, a stricter standard applies than for conventional statements made by private individuals that have no impact on competition (see German Federal Court of Justice, judgment of 19 May 2011 – I ZR 147/09).
The weighing of interests between freedom of expression and general personality rights, which must always be carried out, tends to go against the person making the statement in the case of statements about competitors that also serve commercial purposes.
Those affected are entitled to injunctive relief and compensation
If reaction videos cross the line into unlawfulness, those affected are entitled to civil law claims. If, in accordance with the principles set out in Part 1, an infringement of copyright has occurred, this gives rise, in particular, to claims under section 97 German Copyright Act for injunctive relief against the infringement and for compensation. It should be noted here that these claims are available to the author – that is, the creator of the work – and not necessarily to the influencer.
The situation is different when it comes to infringements of general personality rights. It is the person affected by the impermissible statement – typically the influencer – who has a claim in this regard. They may demand that the statement be withdrawn. In cases of particularly egregious infringements of personality rights, claims for monetary compensation may also arise.
Copy, paste, react? When the law hits the pause button
In order to put a stop to an ongoing infringement as quickly and effectively as possible, it is advisable to first assert one's claims by issuing a prompt warning letter. If this does not produce the desired result, an application for an interim injunction may be considered (known as summary proceedings). In this way, an interim court order can be obtained within a few weeks. It should be noted, however, that an interim injunction is only granted in particularly urgent cases. In media law practice, this requirement is often met – but anyone who waits too long before submitting the application may themselves undermine the urgency that was originally presumed. In this respect, the courts operate within fixed time limits: Depending on the competent regional court, this so-called urgency period ranges from four to eight weeks from the date on which the infringement became known. Once this period has expired, the only option left is usually the main proceedings, which take considerably longer. It is not uncommon for more than a year to pass before a first-instance judgment is handed down. To avoid such delays, affected influencers should therefore take legal action as soon as possible.
See also Part 1 of this article on reaction videos and copyright.
