If you are a social media user, you’ve surely stumbled upon a so-called “clickbait” video, post or article.
The term clickbaiting basically describes the use of extreme tempting headlines online and, in particular, in social media environment that are intended to persuade users to click on an article. Often, unbelievable or unexpected news is announced. In this way, the content creators want to keep readers on the edge of their seats, shock them and arouse their curiosity. This practice is mainly used in online journalism: Blogs, news sites or online magazines want to use it to increase the number of clicks on individual articles and ultimately improve the traffic of the entire website. Generally, the reader is afterwards disappointed because the content behind the gripping title ultimately turned out to be rather moderately interesting.
Some of the content creators intentionally use pictures of famous people to attract the interest of the readers. Sometimes the inappropriate and not licensed use of a picture could cost the creators a fortune. Or a reputation. Have a look at this case from the BGH, judgment of Jan. 21, 2021 – I ZR 120/19.
The 20,000 € Case: Advertising with a celebrity image
The Federal Court of Justice ruled as follows in its judgment of 21.01.2021 (I ZR 120/19):
The use of a celebrity’s image as “clickbait” for an editorial article without reference to the celebrity encroaches on the celebrity’s right to his or her own image; the press company is obligated to pay a notional license fee to the celebrity.
The plaintiff is a very well-known and popular television presenter in Germany. The defendant offers a program guide and also maintains a website and a Facebook profile. On this profile, it posted the following message on August 18, 2015:
+++ JUST REPORTED +++ One of these TV presenters has to retire due to CANCER. We wish he gets well soon.
The post contained four pictures of prominent TV presenters, including one of the plaintiff, who had not consented to the use of his picture. When the reader clicked on the post, he was redirected to the defendant’s website, which truthfully reported on the actual illness of one of the three other TV presenters. Information about the plaintiff was not found there.
The defendant issued the cease-and-desist declaration with a penalty clause demanded by the plaintiff. Due to the use of his likeness, the plaintiff filed a claim against the defendant for payment of an appropriate notional license fee, but at least €20,000.
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