Dr Dennis Jennessen

In his commentary on a judgement by the Berlin Regional Court II, Dr Dennis Jennessen examines the duties of care under defamation law that high-reach influencers must observe when making allegations.

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?

Commentary on the judgment of the Higher Regional Court of Frankfurt am Main of 17 July 2025 – 16 U 80/24 In its judgment, the Higher Regional Court of Frankfurt am Main deals with a public dispute between two well-known influencers and the associated claims for injunctions under freedom of expression and competition law. At the heart of the proceedings is the question of whether disparaging public statements between influencers – in this case, streamers – can give rise not only to claims under personality rights but also to claims under competition law, and where, in the circumstances of the case, the line should be drawn between permissible expression of opinion and impermissible disparagement.

Consent has long been recognised as an instrument of commercial image data processing. For decades, it has been established case law that a data subject can conclude a so-called model release contract with a press company, which authorises the press company to print the image of the data subject and the data subject usually receives a fee for this. As an instrument of commercial data processing in general, however, consent is highly controversial. A paradigmatic example of this is that the Digital Content Directive was initially intended to stipulate that contracts can also be concluded in exchange for the provision of personal data instead of a price. However, this wording no longer exists in the final version of the Digital Content Directive. In its final version, the Digital Content Directive only permits applicability to contracts that regard data as consideration, but leaves the question of whether and under what conditions such contracts can be concluded to the national legal systems. In order to fill this room for manoeuvre, the work develops practice-oriented results for data protection consent that acts as consideration in a contract, based on the established legal practice of consent under copyright law and taking into account the requirements of European data protection law.

The article by Prof Dr Louisa Specht-Riemenschneider and Dr Dennis Jennessen sheds light on the protection of privacy in the digital environment against the backdrop of increasingly complex regulation. The focus is on the challenges that arise from the interplay of different legal levels for the protection of personal rights in the digital public sphere.