Are You Liable for Tagged Posts on Instagram?

Sept 8, 2023 Benn-Ibler Rechtsanwälte

The operator of an Instagram page may be liable for the fact that tagged posts by third party users violate the Austrian Fair Trading Act. According to the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH), anyone who links their page to a third-party page adopts the content of the third-party page as their own and is therefore liable for it.

In the case at hand, the defendant had linked products with the Tirol logo in a photo she had posted on Instagram. The plaintiff then sought an injunction to stop the defendant from advertising by using the logo, claiming that the defendant had used the logo without a licence.

The court of appeal granted the plaintiff’s application for injunctive relief and for publication of the judgment.

The defendants first relied on Section 16 of the Austrian E-Commerce Act (E-Commerce Gesetz, hereinafter ECG). According to this provision, a service provider who stores information entered by a user is not responsible for the information stored on the user's behalf, subject to certain conditions.

The OGH stated that it follows from Section 19 ECG that the liability privilege under Section 16(1) ECG only excludes any liability for damages and criminal liability and does not apply to civil claims for injunctive relief.

Anyone who places a link to a third-party website on their site, therefore, wants and causes internet users to be able to access the content of the third-party site that can be reached via the link from their site. In other words, they provide access to the external site and contribute to its visualisation. Through placing the link to the external site, the user makes the linked offer distinct and is then also responsible for it.

The defendant’s argument that the required threshold of materiality had not yet been exceeded because the logo appeared only in a very small size was also not valid in this case. This is because the general public is accustomed to logos being displayed on the packaging of products and not in an excessively large size. The size of a logo does not correlate with the degree of appreciation by the party displaying it.

OGH 4 Ob 8/23i (31 May 2023)