SECTION C: TV & RADIO/ AV

APPLICABLE LEGISLATION AND GUIDELINES 

• The State Media Treaty MSTV (DE / EN) replaced in November 2020 the Interstate Treaty on Broadcasting and Telemedia RStV and incorporates e.g. video ‘libraries’, search engines, streaming providers and online social networks. This development is a result of transposition of amendments to Directive 2010/13/EU from Directive 2018/1808. Provisions are shown under online channels where applicable; the impact is largely on media platforms rather than advertisers. Broadcast provisions in the context of commercial communications are not notably impacted 
• The Interstate Treaty on the Protection of Minors (Jugendmedienschutz-Staatsvertrag, JMStV; DE, as amended 2020) was also amended in the context of changes in European legislation; its article 6 (EN, as amended 2020) relates largely to commercial communication content rules for the protection of minors

As far as we can establish, the guidelines below are not updated to bring them into line with the State Media Treaty, albeit  they are largely related to arrangements for sponsorship/ product placement unaffected in broadcast

COMMERCIAL BROADCASTING GUIDELINES 

TV: Joint directive of the German state media authorities governing advertising, product placement, sponsorship and teleshopping on television (TV Advertising Directive) DE / EN; this and the radio version below are old - 2012 - but as far as we can establish, still in force. Online references to ad supervision from the state media authorities here 

Radio: Common Guidelines of State Media Authorities for advertising, to implement the separation of advertising from programming, and for sponsorship and teleshopping on radio DE / EN

PUBLIC BROADCASTING GUIDELINES 

ARD/ ZDF Guidelines for advertising, sponsorship, competitions and production aid, applicable to public service broadcasting DE / EN (GRS translation)

AUDIOVISUAL

• The rules from our earlier content section B apply; there are AV-specific content rules shown below (second bullet point of second list)
• Advertising Principles applicable to public service and commercial broadcasting; advertising covers all commercial communications including product placement, sponsorship, teleshopping

• TV advertising and teleshopping may not feature people who regularly present news or current affairs programmes (Art. 8 (8) MSTV)
• Advertising and teleshopping must not prejudice respect for human dignity; include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation; be misleading or prejudice the interests of consumers; or encourage behaviour prejudicial to health or safety as well as grossly prejudicial to the protection of the environment (Art. 8 (1) MSTV)
• Advertising and teleshopping shall be readily recognisable as such and must be clearly distinguishable from editorial content. Advertising and teleshopping must not use subliminal techniques (Art. 8 (3) MSTV) 
• New advertising techniques used shall also keep advertising and teleshopping quite distinct from other parts of the programme by optical means, on radio by acoustic means in a manner that is adequate to the medium (Art. 8 (3) MSTV)
• Surreptitious advertising, product placement and thematic placement as well as similar practices are prohibited. Exceptions for product placement can be found below (Art. 8 (7) MSTV)
• Advertising of a political, ideological or religious nature shall be prohibited (Art. 8 (9) MSTV)
• Advertising and teleshopping for alcoholic beverages shall not promote excessive consumption of such beverages (Art. 8 (10) MSTV)

SECTION C: CINEMA, PRINT, OUTDOOR

CINEMA

• The rules from our earlier content section B apply to cinema advertising, except where those are specific to broadcast or to online

• Art. 11 (5) Youth Protection Act EN / DE: commercials and advertising programmes for tobacco products and alcoholic drinks must not be shown before 6 p.m., notwithstanding conditions in sub-clauses 1 through 4. Note:  GRS improved translation of Articles 9 and 11 the full translation linked above is not correct for art. 9):
  http://www.g-regs.com/downloads/DE_YouthProtectionAct_EN_Arts9_11.pdf

PRINT

• The rules from our earlier content section B apply to print advertising, except where those are specific to broadcast or to online

Self-regulation

• German Press Code EN / DE Drawn up by the Deutscher Presserat (German Press Council) in collaboration with the Press associations Section 7 - Separation of advertising and editorial content
• Practice Guide: Section 7 of Press Code; examples of where advertising has not clearly been distinguished from editorial content: DE

Section 7 Separation of advertising and editorial content (included for relevance to Native)

The responsibility of the press towards the general public requires that editorial publications are not influenced by the private or business interests of third parties or the personal economic interests of the journalists. Publishers and editors must reject any attempts of this nature and make a clear distinction between editorial and commercial content. If a publication concerns the publisher‘s own interests, this must be clearly identifiable

• Guideline 7.1 Distinction between editorial text and advertisements: Paid publications must be so designed that the reader can recognise advertising as such. They can be separated from the editorial section by means of identification and/ or design. Furthermore, regulations under advertising law apply
• Guideline 7.2 Surreptitious advertising: Editorial stories that refer to companies, their products, services or events must not overstep the boundary to surreptitious advertising. This risk is especially great if a story goes beyond justified public interest or the reader‘s interest in information or is paid for by a third party or is rewarded by advantages with a monetary value. The credibility of the Press as a source of information demands particular care when handling PR material

OUTDOOR

• The rules from our earlier content section B apply to outdoor advertising, except when rules are specific to broadcast or to online
• The international association for OOH advertising is the World Out Of Home Organisation (WOO); membership list here

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

CONTEXT AND KEY ISSUES 

This section sets out the rules for online communications generally; individual media/ channels such as email, OBA, Own websites etc. are shown under the respective headers that follow. Broadly, commercial communications online are in remit in Germany; the related Deutscher Werberat declaration is here. A key issue set out below is identification of advertising in social media. Best guidance on privacy matters especially is from the European Data Protection Board; their guidelines are shown below under respective headers. The impact of GDPR, with national legislation that recognises and flanks the Regulation, in Germany’s case the Federal Data Protection Act (BDSG), is shown under individual channel sections that follow where relevant. This Q&A: online advertising in Germany from SKW Schwarz/ Lex September 29, 2023 is a helpful overview

APPLICABLE LEGISLATION AND SELF-REGULATION 

• The State Media Treaty MSTV (DE / EN), in force November 2020, replaces the Interstate Treaty on Broadcasting (RStV). Scope, taken from the AVMS Directive 2010/13/EU and its amending directive 2018/1808, extends to e.g. online audio and video libraries, search engines, streaming providers and social networks. Article 8 for commercial communications content-related rules, which are not significantly changed. The 2018/1808 Directive content amends are here
• Telemedia Act (TMG) DE / EN (key clauses only) Section 6: special information to be provided in the case of commercial communications; the TMG carries amendments to scope from November 2020 that are a result of transposition of the Directive amends referenced above. These largely impact video-sharing platforms in terms of complaint processes and user identification of advertising, the latter under Section 6
• The TMG is also the home of cookie rules under sections 13 and 15. However, the DSK opinion is that Sections 12, 15 (1) and 15 (3) TMG ceased to be applicable when the GDPR came into effect. Provisions of the GDPR apply by default: Piece from Covington and Burling (EN) See below
• In May 2021, the Bundestag approved the Telecommunications-Telemedia Data Protection Act (TTDSG; DE). The privacy provisions from the Telecommunications Act and the Telemedia Act are merged in this new main law, which will be in line with GDPR and the Eprivacy Directive 2002/58/EC. See section 25 for specifics on cookies; the TTDSG entered into force December 1, 2021
• The rules from our earlier content section B apply online, except those specific to broadcast media; at minimum, the Deutscher Werberat ground rules (EN) apply, and the ICC Advertising and Marketing Communications Code (EN) is also taken into consideration when rulings are made
• The Act Against Unfair Competition (UWG) DE / EN misleading omission s.5a UWG; unreasonable harassment s.7 UWG. The UWG was amended to transpose Directive 2019/2161/EU, which addresses e.g. the validity of consumer reviews and search rankings. More here in the form of an explanatory GRS note in English. The law came into force May 28, 2022. Wettbewerbszentrale (WBZ), referenced earlier, has brought several actions (DE) against alleged breaches of these new rules, especially those relating to search rankings information
• The DSA: Consequences of the use of digital advertising from Dentons/ Lex August 30, 2022 covers the significant implications of this EU legislation (the Digital Services Act) on the advertising industry; in force 1 January 2024
• Q&A: online advertising in Germany SKW Schwarz October 2022

GUIDELINES

• State Media Authorities: May 2022 Guidelines for labelling advertising in online media DE / EN; this is probably the most influential and helpful of the various sources, the DE version states May 2023, EN 2022. We have not yet checked the translation  
• In January 2019, Wettbewerbszentrale (WBZ) published updated guidelines for Influencer Marketing (DE); the pdf is password-protected so we're struggling to translate it
• The most significant guidance on privacy matters especially is from the European Data Protection Board. For example, their Guidelines on consent under Regulation 2016/679 (May 2020). Other examples are shown under later respective headers, or can be found in our Section E Links
• ERGA's 2021 Analysis and recommendations concerning the regulation of vloggers is an important paper from the European AV regulators that explores whether vlogging constitutes an audiovisual media service. The annex carries national examples 

SOCIAL MEDIA: INFLUENCER MARKETING 

• Telemedia Act (TMG) Section 6 (1) service providers must observe at least the following preconditions (inter alia):
   
  • Commercial communications must be clearly identifiable as such
  • The natural or legal person in whose name the commercial communications are made must be clearly identifiable
     
• UWG S5a, para. 6: A person is also regarded as acting unfairly if he/ she, for commercial reasons, fails to disclose the commercial intent of the commercial practice, if it is not already apparent from the context, and not identifying/ disclosing it is likely to cause the consumer to take a transactional decision that he would not have taken otherwise

SECTION C: COOKIES AND OBA

Privacy issues should be reviewed with specialist advisors

CJEU Landmark Data Protection Ruling for Online and Behavioural Advertising

William Fry/ Lex September 8, 2023

The EU "Cookie Pledge" Preiskel & Co/ Mondaq 12 June 2023. Pledge here 

Bird&Bird's Global Cookie Review of Winter 2022 includes a clear and complete summary of rules in Germany

EU Rules on Online Targeted Advertising from Covington and Burling/ Lex August 2022 sets out the existing targeted advertising rules and the impact of the DSA, in force January 2024

Online Marketing and the Digital Services Act from Heuking Kühn Lüer Wojtek/ Lex March 14, 2023 is an important piece in this context because it ties in the German statutory regime with the Digital Services Act, which will apply from January 1, 2024. The EC pages on the act are here and the act itself, also known as Regulation 2022/2065, here. The linked article also explains scope, the impact on behavioural advertising and the potential for issues with the GDPR relationship. While provisions largely are aimed at online platforms, there are clear implications for the advertising industry.  

APPLICABLE LEGISLATION AND GUIDANCE

In May 2021, the Bundestag approved the Telecommunications-Telemedia Data Protection Act (TTDSG; DE). The privacy provisions from the Telecommunications Act and the Telemedia Act are merged in this new main law, which will be in line with GDPR and the e-Privacy Directive 2002/58/EC, for a long time supposedly 'covered' in Germany by the Telemedia Act. See section 25 for specifics on cookies; the TTDSG enters into force December 1, 2021. Legal regulation for the use of cookies (EN) from SKW Schwarz Rechtsanwalte/ Lex October 2021 is helpful explanation. From Covington January 2022: 'On 22 December 2021, DSK published its Guidance for Providers of Telemedia Services (Orientierungshilfe für Anbieter von Telemedien). Particularly relevant for providers of websites and mobile apps, the Guidance is largely devoted to the 'cookie provision' of the TTDSG. The publication focuses on the consent requirement for cookies and similar technologies, as well as relevant exceptions'; full article with extracts of the DSK guidance in English here and the guidance itself here (DE)

• Telemedia Act (TMG) EN / DE Sections 5-6 and 12-15; see notes below under 'key clauses cookie rules', and above 
• Act Against Unfair Competition EN / DE; Section 7 re 'Unreasonable harassment'
• Lawful processing rules from the GDPR may apply if processing personal data 
• Re OBA, the State Media Treaty MSTV (DE / EN), in force November 2020, applies in Telemedia (scope explained here by DLA Piper), carries under Section 8 provisions applicable to online audiovisual commercial communications from the AVMS Directive as amended by Directive 2018/1808/EU. These are not significantly changed versus the Interstate Broadcasting Treaty that the MStV replaced, it’s where they are applied that’s changed; the linked English translation provides the rules under article 8

OBA SELF-REGULATION

• The German Data Protection Council for Online Advertising DDOW coordinates self-regulation in OBA. Associated with EDAA 
• ICC Advertising and Marketing Communications Code (EN).The ICC's OBA rules are under C22 of their code; we have extracted the rules here
• ICC Resource Guide for Self-Regulation of Online Behavioural Advertising
• Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest-based Advertising 

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

German Act against Unfair Competition (amended) - E-mail advertising and forum shopping (EN) from Maiwald Patentanwalts- und Rechtsanwalts-GmbH April 2022 discusses case law relating to the applicability of the Unfair Competition Act to commercial communications via e-mail 

CONTEXT 

The communications that we deal with in this section are ‘direct electronic marcoms’ such as email and SMS; fuller definition here. Our focus is on the communications themselves – statutory information requirements within the commercial message, for example – rather than the ‘back end’ data processing (DP) and related consent issues. We provide linked laws and other supporting documents, but we don’t spell out specific DP requirements. With that context in mind, key legislation relating to the processing of personal data (in short, data that identifies an individual) is the GDPR in force from May 25 2018, and 'flanked' nationally by the Federal Data Protection Act (BDSG; link is to English version). The content rules set out in our earlier section B, except those that relate to broadcast advertising, together with any sector-specific content rules, should be observed in this channel

Privacy issues should be reviewed with specialist advisors

 APPLICABLE LEGISLATION

• Telemedia Act (TMG) DE / EN; implementations from the e-Commerce Directive 2000/31/EC. The TMG also includes some data privacy rules intended to reflect the cookie rules from Directive 2002/58/EC (as amended). The DSK opinion is that sections 12, 15 (1) and 15 (3) TMG ceased to be applicable when the GDPR came into effect. Provisions of the GDPR apply by default. See earlier notes under Cookies and OBA re the arrival of TTDSG from December 1, 2021
• Act Against Unfair Competition (UWG) DE / EN; implementations from the UCPD 2005/29/EC
• See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lex here

APPLICABLE SELF-REGULATION

The DDV Codes are now behind a pay wall; we are not able to confirm whether we have linked the latest versions

• German Direct Marketing Association (DDV) Email Marketing Quality Standard EN / DE 
• DDV Code of Ethics Section 5 Digital Media  DE / EN
• ICC Advertising and Marketing Communications Code (EN); see Chapter C, Direct Marketing and Digital Marketing Communications
• ICC Guide for Responsible Mobile Marketing Communications (EN)
• Content of email communications that qualify as advertising will be subject to the self-regulatory and statutory rules set out in content section B, except those rules specific to broadcast channels

GUIDANCE

• The optimum source for guidance for consent under GDPR is from the Article 29 Working Party (now the European Data Protection Board EDPB): Guidelines on consent under Regulation 2016/679 (May 2020)
• Also relevant from the EDPB is Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR
• WBZ Wettbewerbszentrale (Centre for Protection against Unfair Competition) Review of Direct Marketing includes section on spamming/ email/ SMS advertising, see pages 3/4 DE / EN; their e-Commerce guidance is here: DE
• Per earlier entry, the DSK opinion is that Sections 12, 15 (1) and 15 (3) TMG ceased to be applicable when the GDPR came into effect. Provisions of the GDPR apply by default: Piece from Covington and Burling (EN)
• The DSK Report on Experience Gained in the Implementation of the GDPR (EN) includes a section on Direct Marketing
• Guidance on the application of Directive 2005/29/EC on Unfair Commercial Practices December 2021. This is relatively recent European Commission guidance on core EU marketing legislation

KEY CLAUSES: OPT-IN

• B2C / B2B (s. 7 (1) UWG references ‘market participant’ which means competitors and consumers, as well as ‘any person who supplies or demands goods or services’
• (2) An unacceptable nuisance shall always be assumed in the case of:
• ​​​Advertising using a medium of commercial communication not listed under nos. 2 and 3 which is suited to distance marketing and through which a consumer is persistently solicited although it appears that he does not want this
• 3. Advertising using an automated calling machine, a fax machine or electronic mail without the addressee’s prior express consent

Existing customer relationships; ‘soft opt-In’

• S7 (3) UWG allows marketing emails to be sent without the recipient’s prior consent where all the following conditions are met:

​

1. The entrepreneur has obtained from the customer the latter’s electronic mail address must in connection with the sale of goods or services
2. The entrepreneur uses the address for direct advertising of his own similar goods or services
3. The customer has not objected to this use; and
4. The customer has been clearly and unequivocally advised, when the address is collected and each time it is used, that he can object to such use at any time, without costs arising by virtue thereof, other than transmission costs pursuant to the basic rates​

SECTION C: MARKETERS' OWN WEBSITES

CONTEXT

The same principle that applies in paid space also applies in non-paid space such as marketers’ own websites and SNS spaces: if the communication from the website owner is advertising, it’s covered by the rules. As the lines between ‘editorial’/ information and advertising can be particularly blurred online, the definition of advertising is important: the Telemedia Act (EN; key clauses prior to 2020 scope amends) describes ‘commercial communications’ as ‘every form of communication which serves the direct or indirect promotion of the sale of goods, services or the image of a company…’ The link shows some exemptions; generally, user-generated content, for example, is exempt unless endorsed by the marketer. The German regime requires some specific information to be shown clearly on ‘business-like’ websites; these requirements are available below, together with some rules on the content of commercial communications in this environment 

APPLICABLE LEGISLATION AND SELF-REGULATION 

• In May 2021, the Bundestag approved the Telecommunications-Telemedia Data Protection Act (TTDSG; DE). The privacy provisions from the Telecommunications Act and the Telemedia Act are merged in this new main law, which will be in line with GDPR and the e-Privacy Directive 2002/58/EC, for a long time supposedly 'covered' in Germany by the Telemedia Act. See section 25 for specifics on cookies; the TTDSG entered into force December 1, 2021
• Telemedia Act (TMG) EN / DE; November 2020 amends to the Telemedia act, a result of amends to the AVMS Directive being transposed into the TMG, bring into scope e.g. video-sharing platforms. The TMG’s role, for our commercial communication purposes, is to apply information requirements in electronic communications from the e-Commerce Directive 2000/31/EC; shown below
• The State Media Treaty MSTV (DE / EN), in force November 2020, replacing the Interstate Treaty on Broadcasting (Rundfunkstaatsvertrag RStV), reflects the ‘digitisation’ of European media regulation and
• For this commercial communications context, the MStV carries provisions of the AVMS Directive 2010/13/EU and its amending directive 2018/1808. While the scope of the MStV extends into, for example, search engines and social media platforms, well explained here by DLA Piper, its impact on marcoms content is not significant – the advertiser will anyway be observing the commercial communication content requirements either from other (self-regulatory) requirements or assuming the applicability of the AVMS Directive. The content rules remain largely unchanged; amends from Directive 2018/1808 are here
• Individual media companies ‘will have to deal with, however, the question of whether and, if so, which part of its services is covered by (or which part of) the MStV regulation’ (from the DLA Piper blog)
• The UWG (EN) Unfair Competition Act content provisions set out in our earlier section B will also apply; this act is amended by the August 2021 Law to Strengthen Consumer Protection in Competition and Trade Law (DE) effective May 28, 2022. The amends are set out in English here
• References to self-regulatory rules are below

KEY RULES

• Commercial communications online are in remit in Germany; the related Deutscher Werberat declaration is here; own websites are included in the scope
• Exemptions are set out in the EASA Digital Marketing Communications (2023) Best Practice document: while this is not binding, it’s the best source for understanding exemptions
• Basic rules (EN) from the Deutscher Werberat will apply to commercial communications on marketers’ own websites, along with the other rules set out in our content section B, except those specific to broadcast media
• As a reminder, the self-regulatory authorities in Germany also include the ICC Advertising and Marketing Communications Code (EN) in their considerations when making rulings 
• Websites devoted to products or services that are subject to age restrictions such as alcoholic beverages, gambling and tobacco products should undertake measures to restrict access to such websites by minors (Art. C7, ICC Code)
• The 2021 State Media Treaty linked above includes requirements for video-sharing platform services (VSPS) that may affect advertisers under S99: VSPS are required to provide 'a function for labelling advertising in accordance with § 6 (3) of the Telemedia Act Clause Promotional offers, such as discounts, premiums and gifts, must be clearly identifiable as such, and the conditions that are to be met to qualify for them must be easily accessible and presented clearly and unambiguously for labelling advertising'
• The Telemedia Act itself covers the VSPS requirements under section 6, shown below

SECTION C: NATIVE ADVERTISING

DEFINITION AND KEY ISSUES

Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe’s December 2016 How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of Native ads, some good practice recommendations, and a summary of EU rules and their December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.' The ‘native’ form of advertising is like any other advertising - it’s subject to the content rules, in this context those that are set out under our earlier content section B, and others that may be sector-specific. The key general rule is that of identifiability/ disclosure. Various regulations, the most significant of which is the UWG (EN), cover the rule in slightly different ways, but all are clear that advertising must be identifiable as such

APPLICABLE LEGISLATION 

• UWG (Act Against unfair Competition): failing to identify the commercial intent of advertising and all other kinds of commercial practices is deemed to be a misleading omission and therefore unfair competition EN / DE
• s. 5a (6) UWG on surreptitious advertising: a person is also regarded as acting unfairly if he/ she, for commercial reasons, fails to disclose the commercial intent of the commercial practice, if it is not already apparent from the context, and not identifying/ disclosing it is likely to cause the consumer to take a transactional decision that he would not have taken otherwise
• The UWG is amended by the August 2021 Law to Strengthen Consumer Protection in Competition and Trade Law (DE) effective May 28, 2022. The amends are set out in English here. These include some clauses under the amended Section 5a which may impact on Native advertising
• Annex 1, clauses 11 and 23 UWG: B2C commercial practices which shall always be regarded as unlawful and unfair:

• Using editorial content for promotional purposes where the entrepreneur has paid for this promotion, without such connection being clearly identifiable from the content or by images or sounds (advertorial) (Annex 1, no. 11 UWG);
• Falsely claiming or creating the impression that the entrepreneur is a consumer or is not acting for purposes relating to his business, trade, craft or profession (Annex 1, No. 23 UWG)

• Case law indicates that advertising should be identified with the clearly recognisable word ‘advertisement’ (Anzeige) in order to prevent misleading the consumer and to ensure the separation principle of advertising and editorial contributions (see Köhler/Bornkamm as cited in 3.20; Urt. v. 4.8.2010, Az. 5 U 151/09)
• Telemedia Act EN / DE s. 6 (1) (1): In the case of commercial communications which are telemedia or parts of telemedia, service providers must observe at least the following preconditions: 1. Commercial communications must be clearly identifiable as such
• The State Media Treaty (MStV), in force November 2020, applies in broadcast and telemdia (scope explained here by DLA Piper) carries provisions from the AVMS Directive that include under article 8 that 'Advertising shall be clearly recognisable as such' 

Case law 

• For an infringement of Section 5a (6) of the UWG, it is sufficient if the full commercial significance of the commercial action (e.g. advertising) is not recognised by the targeted consumers. It is not necessary for the commercial character of the action to be completely hidden/ concealed OLG Cologne, Urt. V. 9.8.2013, 6 U 3/13 ; OLG Hamburg, Urt. V. 13.6.2013, 3 U 15/12, BI1.b
• BGH, Urt. V. 30.6.2011, I ZR 157/10, item 19 - Branchenbuch Berg for how advertising is perceived, the impact must be assessed according to the perspective of the reasonably well-informed and observant and circumspect market participant – this is decisive. It is also necessary to determine whether the advertising character of a commercial practice is disguised. If the advertising is aimed at traders or self-employed, the perception of the average member of this group is critical
• For recognition of advertising: when assessing the visibility of advertorials, it is not just a question of whether the average reader will recognize the advertising impact or effect after absorbing the article. It must be obvious to the reader at first sight and without any doubt that it is advertising from the manufacturer of the product
  BGH, Urt. V. 31.10.2012, I ZR 205/11, point 21 - Price allocation exercise V
• For advertising aimed at children, stricter requirements must be placed on the necessary clear separation between the editorial part and paid advertising. Children in principle will not be able to distinguish editorial contributions from advertising in the same way as adults, and are therefore more easily deceived. OLG Cologne, Urt. V. 12.4.2013, 6 U 132/12, point 18

APPLICABLE SELF-REGULATION 

• The ICC Code (EN), taken into consideration by self-regulatory authorities when making rules, carries transparency and identification requirements under articles 7 and 8. The ICC’s Guidance on Native Advertising is in English here
• German Press Code EN / DE Drawn up by the German Press Council Deutscher Presserat in collaboration with the Press associations; Section 7 Separation of Advertising and Editorial Content
• Practice Guide Section 7 of Press Code; examples of where advertising has not clearly been distinguished from editorial content: DE

Section 7 Press Code: separation of advertising and editorial content

The responsibility of the Press towards the general public requires that editorial publications are not influenced by the private or business interests of third parties or the personal economic interests of the journalists. Publishers and editors must reject any attempts of this nature and make a clear distinction between editorial and commercial content. If a publication concerns the publisher‘s own interests, this must be clearly identifiable

• Guideline 7.1 distinction between editorial text and advertisements: Paid publications must be so designed that the reader can recognise advertising as such. They can be separated from the editorial section by means of identification and/ or design. Furthermore, regulations under advertising law apply
• Guideline 7.2 surreptitious advertising: Editorial stories that refer to companies, their products, services or events must not overstep the boundary to surreptitious advertising. This risk is especially great if a story goes beyond justified public interest or the reader‘s interest in information, or is paid for by a third part or is rewarded by advantages with a monetary value. The credibility of the Press as a source of information demands particular care when handling PR material

Following feedback, we no longer cover Telemarketing 

SECTION C: DIRECT POSTAL MAIL

OVERVIEW

Privacy issues should be reviewed with specialist advisors 

• Direct Mail in most countries, Germany included, is based on opt-out consent (Section 7 (1.2) UWG; DE), i.e. permissible unless the recipient objects 
• Addressed mail cannot be sent to those registered to the Robinson list, in the case of Germany managed by the DM Association DDV
• The rules set out in our earlier content section B apply to commercial communications in direct postal mail, except those rules identifying broadcast or digital channels; at minimum, the Deutscher Werberat ground rules (EN) apply, and the ICC Advertising and Marketing Communications Code (EN) is also taken into consideration when rulings are made. Chapter C of the iCC Code covers Direct Marketing
• Other content rules include statutory information from the UWG (Section 7 1.4c), which requires 'a valid address to which the recipient can send an instruction to terminate transmission of communications of this kind.'
• If the commercial communication constitutes an 'invitation to purchase' Definition Where goods or services are offered with reference to their characteristics and price in such manner appropriate to the communication medium used that an average consumer can conclude the transaction other information, set out below, must be provided (UWG Section 5a)
• The data processing ‘behind’ DM,  if it involves personal data Definition ‘Personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person Art. 4 (1) GDPR may be subject to lawful processing rules from the GDPR
• The best source of guidance for the obtaining of consent is Guidelines 05/2020 on consent under Regulation 2016/679 from the European Data Protection Board
• Maildrops: 'Putting advertising material in letterboxes is permissible in principle. It is prohibited if the letterbox/ mailbox owner is addressed in a persistent manner (at least twice), even though he/ she has made it understood that he/ she does not want any advertising material, e.g. via a “Bitte keine Werbung” sign- No advertising please (Wettbewerbszentrale Direct Marketing Review - EN). This material will also be subject to advertising content rules 
• The WBZ file linked immediately above is a valuable round-up of various forms of direct marketing and their applicable rules

APPLICABLE LEGISLATION AND SELF-REGULATION

A. Legislation

• Act Against Unfair Competition EN / DE S.7 unreasonable harassment, 5A Invitation to Purchase
• The GDPR 2016/679 if data processing involves personal data, and subject to specialist advice 
• Federal Data Protection Act EN / DE BDSG, albeit 'the provisions of this Act shall not apply where the law of the European Union, in particular Regulation (EU) 2016/679 in the applicable version, directly applies.' (Scope)

B. Self-regulation and guidance 

• DDV Code of Ethics section 3.2 DDV Robinson List for direct mail advertising DE / EN
• The Deutscher Werberat ground rules (EN) apply, and the ICC Advertising and Marketing Communications Code is also taken into consideration when rulings are made. Chapter C covers Direct Marketing and Digital Marketing Communications  
• Wettbewerbszentrale Direct Marketing Review (EN); this is authoritative guidance from the Centre for Protection against Unfair Competition Wettbewerbszentrale​​

SECTION C: EVENTS/ SPONSORSHIP

GUIDE: The Olympic Games 2024 - Beating around le ambush

Lewis Silkin 25 January, 2024

CONTENT RULES 

• Sponsorship material associated with an event, i.e. collateral material such as leaflets, brochures etc. is subject to the rules set out in our earlier content section B
• So the Deutscher Werberat ground rules (EN) apply; scope here (DE) includes sponsorship, as will legislation, principally the Law Against Unfair Competition (UWG) DE / EN (sections 4-7 esp.)
• The file here, a review in English of ‘Direct Marketing’ from the WBZ, shows a number of activities that might be described as ‘field marketing’, e.g. door-to-door, and ‘being spoken to in public’, and the applicable rules
• Chapter B of the ICC Advertising and Marketing Communications Code (EN), which is taken into account when adjudications are considered by the self-regulatory authority, covers the general sponsorship rules, i.e. those that cover issues of respect of the sponsored property, ambushing, data capture etc; clauses follow. For scope and definitions, see the linked code, chapter B

 B1. Principles governing sponsorship

• All sponsorship should be based on contractual obligations between the sponsor and the sponsored party. Sponsors and sponsored parties should set out clear terms and conditions with all other partners involved, to define their expectations regarding all aspects of the sponsorship deal
• Sponsorship should be recognisable as such
• The terms and conduct of sponsorship should be based upon the principle of good faith between all parties to the sponsorship
• There should be clarity regarding the specific rights being sold and confirmation that these are available for sponsorship from the rights holder. Sponsored parties should have the absolute right to decide on the value of the sponsorship rights that they are offering and the appropriateness of the sponsor with whom they contract

B2. Autonomy and self-determination

• Sponsorship should respect the autonomy and self-determination of the sponsored party in the management of its own activities and properties, provided the sponsored party fulfils the obligations set out in the sponsorship agreement

B3. Imitation and confusion

• Sponsors and sponsored parties, as well as other parties involved in a sponsorship, should avoid imitation of the representation of other sponsorships where such imitation might mislead or generate confusion, even if applied to non-competitive products, companies or events

B4.  Ambushing of sponsored properties

• No party should seek to give the impression that it is a sponsor of any event or of media coverage of an event, whether sponsored or not, if it is not in fact an official sponsor of the property or of media coverage. The sponsor and sponsored party should each take care to ensure that any actions taken by them to combat ‘ambush marketing’ are proportionate and that they do not damage the reputation of the sponsored property nor impact unduly on members of the general public

B5.  Respect for the sponsorship property and the sponsor

• Sponsors should take particular care to safeguard the inherent artistic, cultural, sporting or other content of the sponsorship property and should avoid any abuse of their position which might damage the identity, dignity, or reputations of the sponsored party or the sponsorship property
• The sponsored party should not obscure, deform or bring into disrepute the image or trademarks of the sponsor, or jeopardise the goodwill or public esteem associated with them

B6. The sponsorship audience

• The audience should be clearly informed of the existence of a sponsorship with respect to a particular event, activity, programme or person and the sponsor’s own message should not be likely to cause offence. Due note should be taken of existing professional ethics of the sponsored party
• This article is not, however, intended to discourage sponsorship of avant-garde or potentially controversial artistic/cultural activities, or to encourage sponsors to exercise censorship over a sponsored party’s message

SECTION C: SALES PROMOTIONS

CONTEXT

This website was created in order to provide multinational rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National Self-Regulatory codes and Consumer Protection legislation around pricing, for example, are checked for any provisions that may affect SP and included below.

Note that promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance are considered a lottery and are generally illegal

• Act against Unfair Competition EN / DE Section 5 and Annex; the UWG was amended by the Law to strengthen consumer protection in competition and trade law (DE) of August 17, 2021; explanatory note in English here. amends in force May 28, 2022
• Telemedia Act (TMG) DE / EN s. 6 (1) re online information/ conditions
• Directive 2019/2161/EU amends the Product Pricing Directive 98/6/EC to introduce rules related to promotional pricing, extracted from the Directive here and transposed in Germany by the Ordinance amending the Price Indication Ordinance of November 2021 (DE), coming into force May 28, 2022
• The rules set out in our earlier content section B apply to commercial communications in Sales Promotional material; at minimum, the Deutscher Werberat ground rules (EN) apply, and the ICC Advertising and Marketing Communications Code (EN) is also taken into consideration when rulings are made
• The linked ICC Code above includes a specific Chapter A on sales promotions; extracts are shown below  

1. KEY CLAUSES LEGISLATION
(non-exhaustive)

• It is presumed to be misleading to advertise with a price reduction in a case where the price concerned has been demanded for only an unreasonably short period of time (‘moon price advertising’, Mondpreiswerbung). In the event of dispute as to whether, and for what period of time, the price was demanded, the burden of proof shall fall upon the person who advertised the price reduction (Section 5 (4) misleading commercial practices)

• The reason for purchase such as the existence of a specific price advantage, the price or the manner in which the price is calculated, (italics ours) or the conditions on which the goods are supplied or the services provided (Section 5 (1) No. 2 false statements)
• The following information shall be regarded as material within the meaning of subsection (2) if not already apparent from the context: 3. The total price, or in cases where the nature of the goods or services means that such price cannot be calculated in advance, the manner in which the price is calculated as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot be calculated in advance, the fact that such additional charges may be payable (Section 5a No. 3 UWG misleading omissions)
• It shall be presumed to be misleading to advertise with a price reduction in a case where the price concerned has been demanded for only an unreasonably short period of time (Section 5 (4) UWG misleading action) 
• Offering goods or services as being “gratis”, “free”, “without charge”, or using a similar expression, although costs are to be paid therefor (sic); this shall not apply to the unavoidable cost of responding to the offer of goods or services or of collecting or paying for delivery of the goods or of using the services (Point 21, Annex UWG)  

Other provisions in UWG also applicable to price indication in an advertisement

• Making an invitation to purchase goods or services within the meaning of Section 5a (3) at a specified price when the entrepreneur does not disclose that he has reasonable grounds for believing that he will not be able to supply these, or equivalent, goods or services, or procure such supply, at such specified price for a period that is, and in quantities that are, reasonable (bait advertising). Where stocks are available for less than two days, it shall be incumbent on the entrepreneur to furnish proof of reasonableness (Annex Point 5 UWG)
• Making an invitation to purchase goods or services within the meaning of Section 5a (3) at a specified price in a situation where the entrepreneur, with the intention of promoting different goods or services instead, then demonstrates a defective example of the goods or services, or refuses to show the consumer the goods or services advertised, or refuses to take orders for the goods or services or to perform the advertised service within a reasonable time (Annex Point 6 UWG)

Games and prizes

• Annex 1 (No’s 16, 17, 20) UWG. B2C commercial practices which shall always be regarded as unfair (only those relevant to this section SP):
   
  • Claiming that certain goods or services are able to facilitate winning in games of chance (Annex 1(16) UWG)
  • Making the false statement, or creating the false impression, that the consumer has already won, or will win, a prize, or that he will obtain another benefit although such prize or benefit in fact does not exist, or that in any event the possibility of obtaining a prize or other benefit is subject to the consumer paying money or incurring a cost (Annex 1(17) UWG
  • Offering a competition or a promotional contest without awarding the prospective prizes or a reasonable equivalent (Annex 1 (20) UWG)

Offers and conditions

• S. 6 (1) Telemedia Act (TMG) DE / EN (trans of key provisions) In the case of commercial communications which are telemedia or parts of telemedia, service providers must observe at least the following preconditions:
   

1. Commercial communications must be clearly identifiable as such
2. The natural or legal person in whose name the commercial communications are made must be clearly identifiable
3. Promotional offers, such as discounts, premiums and gifts, must be clearly identifiable as such, and the conditions which are to be met to qualify for them must be easily accessible and presented clearly and unambiguously
4. Prizes and games of an advertising nature must be clearly identifiable as such and the conditions of participation must be easily accessible and presented clearly and unambiguously

• (2) If commercial communications are dispatched by electronic mail, neither the name of the sender nor the commercial character of the message may be disguised or concealed in the heading and subject lines. Disguising or concealment takes place if the heading and subject lines are deliberately designed in such a way that, before the recipient views the content of the communication, he receives no or misleading information about the actual identity of the sender or the commercial character of the message