Twitter is one of the largest social networks in the world. Private individuals, organizations, companies and a large number of media use the American service to disseminate short text messages, so-called “tweets”. It is also possible to share another user’s tweet with your own followers by means of a “retweet”.

Retweeting someone else’s photo resulted in a warning

A German journalist also made use of this retweet function. In 2019, he retweeted a tweet from the press spokesperson of a parliamentary group in the Bundestag. It contained a portrait of a person. The person depicted became aware of this and felt that the retweet infringed their exclusive right to use the portrait photo.

The person depicted then sent the journalist a warning and demanded that he refrain from reproducing the image in question or making it available for retrieval. The defendant issued a cease-and-desist declaration, but refused to pay the pre-trial legal fees. The owner of the right to use the photo then took the case to Cologne District Court.

Retweeting another person’s photo merely “embedding”

The court has now dismissed the corresponding claim in its ruling of April 22, 2021 (Ref.: 111 C 569/19). The man’s lawsuit would only have been justified if retweeting a photo constituted a copyright infringement. In the opinion of the court, this is not the case.

This is because retweeting a photo is not a copyright infringement, but merely so-called “embedding”. This is not the copying of third-party content, but the embedding of existing content in one’s own social media profile. In such a case, there is neither reproduction nor making available to the public and therefore no relevant act.

Retweeting another person’s photo is also not an act of communication to the public

Retweeting a photo is also not an act of communication to the public, as this is only the case if a larger and unlimited group of people is reached and reproduced for a new audience. In this case, the image was already available on Twitter without restriction. According to the court, content that was already available to all Internet users cannot be made accessible again.

The man therefore failed at first instance. This was actually to be expected due to the prevailing and largely unambiguous case law. Nevertheless, the ruling means more legal certainty for Twitter users: they can continue to retweet third-party content in the future without having to fear a justified warning due to copyright infringement.