This article examines the liability of influencers under the law governing freedom of expression. Following an analysis of the relevant legislation and case law, the authors provide recommendations for influencers and outline the legal consequences of breaches of the (journalistic) duties of care incumbent upon them.
In recent years, influencers have become increasingly significant in public discourse. As early as 2019, Rezo caused a stir in the run-up to the European elections with his YouTube video ‘The Destruction of the CDU’. More recently, Naomi Seibt, an influencer known as the ‘Musk whisperer’, caused a stir by promoting far-right politics on her X account. But even aside from their involvement in political debates, influencers shape social discourse through their posts, for example on how to deal with #MeToo cases. Nevertheless, there has been little discussion so far about the legal standards governing freedom of expression against which influencers must be measured. Are their statements to be treated on a par with those of private individuals, meaning they can invoke the so-called ‘layperson’s privilege’? Or should influencers be treated in the same way as traditional mass media under freedom of expression law, such that journalistic duties of care also apply to them?