Naming rights are of great importance for companies and entrepreneurs – especially in the digital space. Social media platforms such as X (formerly Twitter) pose new challenges: What to do if third parties use names or company names illegally? The Hanseatic Higher Regional Court of Hamburg (OLG Hamburg) decided on November 4, 2024 (case no. 7 W 119/24) how far-reaching a judicial prohibition to protect the right to a name may go.
Legal situation: Right to a name and right of personality on social media
The right to a name is protected in Germany by Section 12 of the German Civil Code (BGB). It secures the legal right of name holders to defend themselves against the unauthorized use of their name. Combined with the general right of personality under Article 1 and Article 2 of the Basic Law, it offers effective protection, even in a digital context. This right is often violated on social media in particular when third parties use names or company names without consent.
The case: OLG Hamburg and the limits of naming rights
The Higher Regional Court of Hamburg had to decide whether and how social media platforms can be obliged to prevent unauthorized use of names. In the specific case, the court prohibited the platform operator from using the applicant’s name without consent.
1. infringement of the right to a name:
The court saw a clear violation of the right to a name, as the applicant’s name was used without permission. In addition, the platform operator had not fulfilled its duty to check for legal infringements.
2. geographical limitation of the prohibition of the right to a name with digression GDPR:
The ban was limited to Germany. Unlike EU-harmonized regulations such as the GDPR, German naming law does not allow for an EU-wide effect.
Excursus: The GDPR recognizes a prohibition that applies to the entire territory of the EU. However, this Europe-wide prohibition claim follows directly from the GDPR and is derived from its full harmonization within the EU (see ECJ, judgment of 24.09.2019 – C-507/17). In contrast, there is no such full harmonization in the case of the right to a name, even if the applicant could base the prohibition on the ECHR, which applies throughout the entire territory of the EU. This is because such a claim does not follow directly from the ECHR, but from Section 823 (2) BGB in conjunction with the ECHR, i.e. again a German (non-harmonized) standard
3. difference to ECJ case law:
While the ECJ favors a uniform solution in cross-border cases, the Higher Regional Court of Hamburg was guided by national provisions that only apply in Germany. It is also guided by the Advocate General’s statements that the national states are limited to their territory (Opinion of 13.07.2017, C-194-16, BeckRS 2017, 116694, para. 80). The ECJ adheres to the mosaic theory.
Practical tips for entrepreneurs
Companies can take the following measures to protect themselves against unauthorized use of names on social media:
- Documentation of infringements: Unauthorized use of names should be documented with screenshots and other evidence.
- Take legal action: A temporary injunction can provide a quick remedy if naming rights are infringed.
- Observe the limits of legal enforcement: As a rule, court decisions only apply nationally. In cross-border cases, a comprehensive legal strategy should be developed.
Conclusion: Enforce name protection digitally
The ruling by the Higher Regional Court of Hamburg shows that the right to a name is also an important protection mechanism on social media. However, entrepreneurs should take into account the geographical limits of such rulings and seek legal advice at an early stage in the event of cross-border infringements. With the right strategy, the protection of company and business names can also be effectively implemented in the digital space.
