This article summarizes the most important legal problems with marketing measures on Twitter & Instagram.
A username can only be assigned once on both Twitter and Instagram.
This raises questions similar to those when registering a domain, where it is recognized that the registration process may already violate a third-party right to a name protected.
It is also possible that third-party brands may be infringed, especially if they are known trademarks. There can easily be confusion whether postings can be assigned to the account of the (well-known) brand company.
However, the mere registration of a username does not constitute a trademark infringement.
This is only the case if the other requirements of a trademark infringement are met, including trading in business transactions.
Fact : Usernames that have brand terms but indicate a critical examination of a product or company are permitted.
It would be fair to say that there are pros and cons to social media as well.
Example: Registering the username “@apple” on Twitter would violate the naming and trademark rights of the well-known IT company – Apple.
On the other hand, a username like “@applekritiker” would be permissible if the account were used to critically deal with Apple branded products .
Anyone who deals with Internet law already suspects it. Profiles used on business on Twitter and Instagram, such as company or brand accounts, always require an imprint.
Private profiles, on the other hand, do not require an imprint.
The decisive factor for the classification is not the subjective perception of the account owner, but the objective external effect of the profile, i.e. the content of the tweets or images.
If the contributions aim to promote the sale of goods, services, to promote the company or its brands in general, the account must have an imprint.
The evaluation of profiles used in mixed use is often critical.
Especially with freelancers, the boundaries between private posts and business advertising quickly fade, which is why I recommend linking to an imprint on Twitter and Instagram to be on the safe side.
For Twitter, the integration of the imprint is easy, as Twitter offers its own imprint field.
For Instagram, Instagram does not yet offer its own imprint field, which is why users have to switch to the profile description or, alternatively, the website field.
When choosing the avatar photo, make sure that you do not violate third-party copyrights.
Professional photographs may just as little be used without the consent of the respective author as snapshots, comics or collages uploaded by other users.
Violations can be warned for a fee.
Both Twitter and Instagram allow competitions to be held on the platform.
Always ensure that you use legally compliant conditions of participation, which in particular contain regulations on the following points:
- Eligibility to participate
- Allowable Participation Actions
- Duration of the competition (start and end)
- Determination of the winners
- (Public) notification of the winners
- Liability & warranty
There are currently no restrictions on the use of hashtags for competitions on Instagram or Twitter.
For example, it would be permissible to upload a picture to Instagram with a certain hashtag as a condition for participating in a competition.
It would also be permissible to make participation dependent on liking a picture (Instagram), re-tweeting a tweet (Twitter) or following a specific account.
The use of hashtags on Twitter and Instagram makes it possible to assign posts to a topic.
For example, if you add the hashtag #Techpally to a post, clicking on the hashtag will show you which posts have been tagged by other users with the same keyword.
In terms of copyright , it should be noted that the use of a hashtag by a user does not mean that companies are allowed to accept the third-party contribution in their own profile without the consent of the author.
In my example, it would not be allowed, for example, if Techpally downloaded the picture posted by a user and uploaded it again in their own company account on Instagram or Twitter.
Hashtags can be problematic under trademark law if a third-party brand is used to advertise one’s own products.
For example, an Apple dealer should not use the hashtag #Samsung to advertise an iPhone offer.
In terms of naming law, the use of hashtags, especially with celebrities, harbors dangers that in principle do not have to accept if their name is advertised without being asked .
When using photos on Twitter and Instagram, make sure that no third-party copyrights or personal rights are violated.
There is a legal distinction between uploading and posting your own or third-party images, embedding and sharing images.
The posting of self-made photos is always permitted from a copyright point of view.
However, conflicting personal rights of persons depicted can be problematic.
In this respect, think about the right to your own picture.
Whether consent must be obtained from the person concerned before publication depends heavily on the respective recording, the recognizability of individual persons and the accompanying circumstances.
If you want to avoid warnings, you should only use photos for advertising purposes after the person concerned has demonstrably given their consent for the specific advertising (preferably in writing or by email).
Learn to create stunning images online, so that you don’t have to worry about photo copyrights. You can also share them freely across the internet or social media.
Posting other people’s photos
The posting of third-party images is only permitted if the author’s consent to publication has been obtained beforehand (if necessary, additional consent from the persons shown).
The quality of the photo is irrelevant, as the copyright law even prohibits the unsolicited adoption of the simplest snapshots.
The consent should be requested as specifically as possible and documented in a verifiable manner.
Retweets of external photos (only Twitter)
Twitter makes it possible to share contributions from other users with the followers of your own account via the retweet function.
I consider copyright problems with retweets to be remote, because retweets are inherent in the Twitter system and the original author of the tweet had to agree to the Twitter conditions when registering for the first time in order to be able to use the social media network at all. This includes agreeing to retweets.
Based on a current ECJ ruling , I consider the use of the embedding functions provided by Instagram and Twitter available, e.g. within the framework of the company’s own website, to be permissible without any problems, since photo tweets or images posted on Instagram are “neither for a new audience can still be reproduced according to a special technical process that differs from that of the original reproduction.