A. Overview

SECTION A OVERVIEW

 

Updates since February 2023 (slimmed)

Wettbewerbszentrale and new UWG rules (DE)

Corporate Influencers labelling commentary

SKW Schwarz/ Lex Feb 20, 2023

Influencer marketing: enforcement time

Reed Smith LLP/ Lex March 6, 2023

Proposal for a Directive on Green Claims

March 22, 2023 from European Commission

SKW Schwarz commentary here April 11, 2023

Courts disagree on 'climate-neutral' (DE)

Heuking Kühn Lüer Wojtek July 19, 2023

Also on climate neutral Harting/ Lex July 17, 2023 (EN)

Carbon neutrality and environmental neutrality (DE)
Case law report Taylor Wessing August 2, 2023

Q&A: online advertising in Germany

SKW Schwarz September 29, 2023

Sustainability in advertising (DE) CMS Nov 29, 2023

Taylor Wessing again; more from the Karlsruhe court

DW Annual Report March 13, 2024 (DE)

Green transition Directive enacted (DE)

DLA Piper/ FOR March 24, 2024

Corporate Influencers (DE) Schwarz Apr 29, 2024

 

KEY ISSUES / NEWS 

 

DDG lays the foundation for the EU DSA in Germany
Taylor Wessing May 14, 2024

DSA News Hub - Aktuelles zum Digital Services Act - Update #1

CMS Germany February 15, 2024

Auf Wiedersehen Werbung mit Klimaneutralität? Taylor Wessing Feb 9, 2024 

'As seen on' and star reviews: case from the Hanseatic Higher Regional Court (DE)

Online Marketing and the Digital Services Act from Heuking Kühn Lüer Wojtek/ Lex March 14, 2023 ties in the German regime with the DSA, in force February 17, 2024. The EC pages on the act here and the act itself, aka Regulation 2022/2065, here. The article explains the impact on behavioural advertising and potential for issues with GDPR

 

SELF-REGULATION

 

The German system has two self-regulatory organisations: the German Advertising Standards Council Deutscher Werberat (DW), which deals with issues of social responsibility, taste and decency – codes of conduct here EN / DE; and the Centre for Protection against Unfair Competition Wettbewerbszentrale (WBZ), which is statutorily authorised to initiate legal action against those who infringe or appear to infringe competition laws. Both of these SROs are affiliated to the German Advertising Federation (Zentralverband tier deutschen Werbewirtschaft ZAW), which represents the whole advertising industry. The DW codes apply to all media, and there are some media-specific provisions, including online per this statement in 2011 DE / EN. In the context of these general advertising rules, relevant DW codes include:

 

General principles on commercial communications (Oct 2007) EN / DE

Code against personal denigration and discrimination (July 2014) EN / DE; and

Advertising with celebrities EN / DE

 The Children’s Code (EN), (DE) set out under the children sector on our home page 

 

A helpful general piece from DLA Piper March 2021: Prohibited and controlled advertising in Germany.

 

Denigration and discrimination

 

A significant addition in June 2019 to DW regulation, related to and expanding on the code linked above, is in the form of a guidance 'flyer'. Using some (truly terrible) example 'advertising', this addresses issues of racism, discrimination against and denigration of women and men, stereotyping, nudity and sex in advertising, objectification and ’ageism’. The German version, obviously applicable in this context, is here and our (unofficial and non-binding) translation is here.

 

The ICC

 

In making rulings, Deutscher Werberat include the ICC’s Advertising and Marketing Communications Code in its set of considerations, the others being applicable law and their own codes of practice. The ICC Code is here in English and here in German, the latter obviously applicable. Extracts are in our content section B that follows.

 

UNFAIR COMPETITION/ COMMERCIAL PRACTICES

 

The Law Against Unfair Competition Gesetz gegen den unlauteren Wettbewerb (UWG) DE / EN (key sections 5-7 and the annex linked below; translation does not include amends referenced in para below) is the principal law regulating advertising activities, implementing the Unfair Commercial Practices Directive (UCPD) 2005/29/EC and the Misleading and Comparative Advertising Directive 2006/114/EC. The law applies to all media and to B2B and B2C. Annex I of the UWG lists 31 commercial practices that are regarded as ‘unfair under any circumstances’: the so-called ‘Blacklist’. This is a significant force in German advertising regulation; the Wettbewerbszentrale (WBZ, see above) is statutorily authorised to initiate legal action against infringement of competition laws, a relatively unusual arrangement in European advertising regulation. A March 2021 article from DLA Piper via Lexology, Misleading advertising practices in Germany (EN), sets out the rules. Q&A: online advertising in Germany from SKW Schwarz/ Lex September 29, 2023, as the title suggests, is more specific.

 

The UWG was amended by the Law to strengthen consumer protection in competition and trade law (DE) of August 17, 2021; this act inter alia transposes Directive 2019/2161/EU, which covers significant commercial territory such as price reductions (see below under Pricing) and the validity of consumer reviews and search rankings but does not hugely impact the content of commercial communications. There are, however, implications for Influencer messaging, for 'invitations to purchase' and for the way in which brands are presented multinationally if product composition differs materially. More here in the form of an explanatory GRS note in English. The law came into force May 28, 2022. The Centre for Protection against Unfair Competition Wettbewerbszentrale (WBZ), referenced above, has brought several actions (DE) against alleged breaches of these new rules, especially those relating to search rankings information. 

 

ENVIRONMENTAL CLAIMS

 

Courts disagree on 'climate-neutral' (DE)

Heuking Kühn Lüer Wojtek July 19, 2023

EASA update on below October 18, 2023

Proposal for a Directive on Green Claims. March 22, 2023

European Commission press release on the above here 

 

German case law on the term “climate neutral” (klimaneutral), “environmentally neutral” (umweltneutral)
CMS Germany/ Lex September 5, 2023. A comprehensive review of some definitions and cases 

Green, Greener, Greenwashing - Green Claims Marketing in the EU and Germany Morrison & Foerster LLP/ Lex. December 2022

Green Advertising in Germany - making carbon neutral claims. Taylor Wessing/ Lex April 3, 2023

 

In Germany, competitors and consumer associations may challenge environmental claims as unfair commercial practices, which are therefore assessed against the UWG (see above). As that act is derived from European UCPD legislation, Commission Guidance (December 2021) is obviously relevant: section 4.1.1. Environmental claims. Industry self-regulation is in the form of chapter D of the ICC Code linked earlier and here, and the ICC Framework for Responsible Environmental Marketing Communications (November 2021). See environmental claims in our content section B below for full information. May 19, 2021 WBZ objected to various advertisements in connection with the statement “climate neutral” as misleading and non-transparent; information here (DE). A May 2021 article from CMS Germany/ Lex Sustainability, Advertising and Greenwashing discusses some of the broader claims and their legal compliance and the December 2021 piece Beware of advertising with 'climate-neutral' and 'CO2 reduced' from the same source covers the background to a case that the WBZ brought re climate neutral. This August 2022 Bird&Bird piece Advertising “climate-neutral” production conditions reports on an appeal heard by by the Higher Regional Court of Schleswig, which overturned an earlier judgement that a climate-neutral claim was misleading. And Trend Nachhaltigkeit - Werbung mit Green Claims from Harting November 2022 (EN) rounds up the legal context, references some cases and sets out EU developments. ICLG's Consumer Protection Laws and Regulations from April 2023 explains how various jurisdictions, Germany included, apply consumer protection law to environmental claims. 

The WFA launched their Planet Pledge in April 2021 and Global Guidance on Environmental Claims April 2022. On 7 October 2021, Google launched a new monetization policy for Google advertisers, publishers & YT creators that prohibits ads for, and monetization of, content that contradicts scientific consensus on climate change issues. More here

 

CHILDREN AND YOUNG PEOPLE

 

The DW publish The Children’s Code (EN), which is set out in full under the children sector on the home page of this website. The Interstate Treaty on the Protection of Minors (Jugendmedienschutz-Staatsvertrag, JMStV; DE, as amended 2020 to incorporate e.g. video-sharing platforms) sets down rules for the providers of both telemedia and broadcasting services; article 6 (EN, as amended 2020) relates largely to commercial communications' content rules for the protection of minors, and is transposed from the AVMS Directive 2010/13/EU and its amending Directive 2018/1808. Also relevant is article 4 DE / EN of the Youth Protection Guidelines (Jugendschutzrichtlinien JuSchRiL) which substantiate/ extend the legal requirements of JMStV. As far as we can establish this has not been amended in light of revisions to the media acts and treaties. A separate ‘children’ category devoted entirely to rules for marcoms aimed at children, per above, is on the home page of this website.

 

CHANNEL RULES

 

There's a helpul and comprehensive Media Regulatory Update Series courtesy of Baker McKenzie/Lexology here.

This is largely about, however, consumer protection measures not directly related to marketing communications.

Q&A: online advertising in Germany from SKW Schwarz Rechtsanwälte/ Lex September 2023 is more specific to advertising.

 

Influencer marketing

 

Influencer marketing: enforcement time. Reed Smith LLP/ Lex March 6, 2023

Do German corporate influencers have to label their posts as advertising? SKW Schwarz/ Lex February 20, 2023

 

A high profile case in April 2019 involved Cathy Hummels, who won an action brought by the Social Advertising Association (VSW) on unlabelled posts is interesting because the court decided that there was no proof she had been paid, albeit they also stated the case was specific to this influencer. In January 2019, Wettbewerbszentrale published updated guidelines for Influencer Marketing (DE). Helpful blog on recent case law here from the International Trademark Association, and a thorough and valuable review from Hogan Lovells International LLP here. A significant development is the May 2022 flyer 'Labelling of advertising in online media' (DEEN) from the state media authorities; press release here (DE). This distinguishes by medium and separates video and audio (for podcasts). Further significant development is the September 2021 German Federal Court of Justice decision outlined by Hogan Lovells, suggesting a very specific case-by-case approach by the courts. This November 2021 article from the World Trademark Review also via Lexology covers similar ground and refers to the UWG amendment referenced above. Finally, ERGA's 2021 Analysis and recommendations concerning the regulation of vloggers, also referenced below. Not quite finally: this Labelling as advertising in social media posts is an important piece from Hogan Lovells/ Lex July 27, 2022, explaining a judgement of the higher District Court of Frankfurt against an influencer and third party in the context of the amended version of the UWG and, for good measure, the State Media Treaty and the Telemedia Act. Definitely finally: DLA Piper's Influencer Marketing Guide of April 2022, which covers a number of jurisdictions including Germany, is here.

 

Audiovisual media 

 

The State Media Treaty (MStV; DE / EN), in force November 2020 and replacing the Interstate Treaty on Broadcasting (RStV), carries the provisions of the AVMS Directive 2010/13/EU and its amending Directive 2018/1808. The treaty sets out the rules for commercial communications - including teleshopping, sponsorship and product placement - in the expanded scope, which now incorporates e.g. online audio and video libraries, search engines, streaming providers and social networks. Rules are set out in the following sections B and C; the relevant Directive content amends for commercial communications are shown here and are not especially significant, though there are implications for Food advertising self-regulation in particular (see home page of this website for that sector). This development reflects the digitisation of European media regulation and has most impact on platforms (versus advertisers), in terms of child protection, search results management etc. There's a helpful blog explaining the structures from DLA Piper here and ERGA's 2021 Analysis and recommendations concerning the regulation of vloggers is the definitive regulators' view on whether vlogging is in scope. The Telemedia act referenced below also receives some of the directive's amends.

 

Online privacy and information 

 

EDPB data protection guide for small businesses in FR & DE

EDPB May 17, 2024

Privacy Sandbox news and updates 

 

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. Legal regulation for the use of cookies (EN) from SKW Schwarz Rechtsanwälte/ Lexology October 2021 is helpful explanation as is a Stripe commentary (EN) November 2023. From Covington January 2022: on 22 December 2021, DSK (see below) published its Guidance for Providers of Telemedia Services (Orientierungshilfe für Anbieter von Telemedien). Particularly relevant for providers of websites and mobile applications, 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, introduced by the law; full article with extracts of the DSK guidance in English here and the guidance itself here (DE).

 

The Telemedia Act, which was the home of marcoms-related clauses from the e-Commerce Directive, was repealed on May 14, 2024, when the Digital Services Act/ Digitale-Dienste-Gesetz (DDG) came into force; DE version here. E-Commerce clauses are now found under Section 6 of the DDG, which is the recognition of the EU's Regulation of the same name. DDG lays the foundation for enforcing the EU Digital Services Act in Germany (EN), same date as the act came into force, is helpful explanation from Taylor Wessing. 

The Telemedia Act TMG DE / EN under section 6 delivers the marcoms-related clauses from the e-Commerce Directive 2000/31/EC. The TTDSG makes some amends to the TMG under article 3, though the TMG section 6 provisions that set out e-Commerce information requirements remain under what will become, when the TTDSG comes into force, section 5. Still with us? Additionally, the TMG was amended in November 2020 (DE) to absorb the scope changes to the AVMSD brought about by Directive 2018/1808, which now includes in its remit e.g. video-sharing platforms.

 

GDPR

 

Privacy issues should be reviewed with specialist advisors

 

The General Data Protection Regulation 2016/679 (GDPR) applied directly in all EU member states from 25 May 2018, replacing the Data Protection Directive 95/46/EC. The European Commission page on GDPR is here. A table here sets out how GDPR relates to some marketing techniques and channels, and to other legislation that applies in marketing, though it is a somewhat broad and selective picture and subject to national differences in application. Member states, Germany included, tend to retain their national privacy legislation and add to it to ‘recognise’ and flank GDPR. Germany’s key data protection law, duly amended, is the Federal Data Protection Act (BDSG - EN). The German Data Protection Authority BfDI, which publishes some text in English, is the best national source for data protection issues, together with the Data Protection Conference (DSK – Datenschutzkonferenz). On a European level, some guidelines related to GDPR are in our links section E; example is April 2021 European Data Protection Board guidelines on the targeting of social media users here. Specific rules related to all of the above four paras are set out by channel in our following section C.

 

FREEDOM OF ADVERTISING SPEECH

 

Germany’s ‘Basic Law’ (Grundgesetz GG) is the constitution of the Federal Republic; case law (Benetton) establishes that the fundamental right to freedom of expression in article 5 applies to advertising EN / DE; see also the ‘Shock advertising’ sub-head in our following content section B.

 

PRICING

 

From the Price Indication Ordinance (PAngV) DE (see below for amended version). When a price is included in consumer advertising, the information obligations in the ordinance must be observed; in particular, the total price inclusive of VAT and other price components must be specified (s.1 (1)).  See the pricing section in content section B for full information. Pricing in advertising is often a source of complaint, both consumer and competitor, and sometimes competitor litigation. It’s best to check prices in ads, especially new ads, with legal advisors. 

 

Directive 2019/2161/EU amends the Product Pricing Directive (PPD) 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 (Verordnung zur Novellierung der Preisangabenverordnung) DE, under section 3/11, which came into force May 28, 2022. Helpful December 2021 piece on the issue from CMS Germany here. Commission guidance on the application of the article in question (6a of the PPD) here.

 

 

 

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B. Content Rules

SECTION B CONTENT RULES

 

 

This section is longer than most. To help navigate it, some of the text is 'anchored' and linked to respective headings immediately below

 

  1. SELF-REGULATION 

1.1.  DW Code of Conduct; basic principles

1.2.  Personal denigration and discrimination

1.3.  Advertising with celebrities (self-reg and legislation)

1.4.  ICC Advertising and Marketing Communications Code  

 

  1.  LEGISLATION 

       2.1. Law against unfair competition
       2.2. Broadcast/ AV rules

 

  1. ENVIRONMENTAL CLAIMS

3.1. The ICC Framework for responsible environmental marketing communications

3.2. UCPD and UWG application to environmental claims

 

  1. PRICING IN ADVERTISING

- Legislation (UWG, PangV)

- Cae law and guidance 

 

  1. ‘SHOCK’ ADVERTISING

- Benetton Case

 

1. SELF-REGULATION

 

1.1 Deutscher Werberat general principles on commercial communications EN / DE

 
Advertising must uphold generally accepted social values and prevailing notions of decency and morals. At all times, it must be based on the principles of fair competition and responsibility towards society. In particular:
 
  • Consumer trust must not be abused and inexperience or lack of knowledge not exploited
  • Children and juveniles must not be subjected to physical or psychological harm
  • Discrimination in whatever form – on grounds of race, ethnic origin, religion, gender, age, disability or sexual preference, or by reducing an individual to a mere sexual object – should be neither fostered nor silently tolerated
  • Violent, aggressive or antisocial behaviour should be neither fostered nor silently tolerated
  • Fear should not be instilled nor unhappiness or suffering instrumentalised
  • Behaviour that threatens consumers’ safety and security should be neither fostered nor silently tolerated

 

1.2. Code of conduct of the German Advertising Council against personal denigration and discrimination July 2014 EN / DE

 

 A guidance ‘flyer’ issued in June 2019 and based on the above code addresses issues of racism, discrimination against and denigration of women and men, stereotyping, nudity and sex in advertising, objectification and ’ageism’. The applicable German version is here and our translation is here. From the code: 

 
In commercial advertising, no expressions or depictions may consequently be used which, in particular:
 
  1. Discriminate against persons, for example, on account of their gender, descent, race, language, place of origin, religion, political opinions, age, disability, or occupation
  2. Devalue people simply because they do not conform to prevailing expectations in respect of their appearance, behaviour, sexual orientation, personal qualities or lifestyle
  3. Include violence or the trivialisation of violence against people or permit violence or domineering behaviour to appear to be acceptable
  4. Create the impression that people are available for sale or treat them as objects
  5. Reduce people to their sexuality or suggest their sexual availability
  6. Convey a degraded view of sex with excessive display of nudity; or
  7. Are of a pornographic character
 
In deciding whether there has been a breach of these principles, the following criteria in particular are to be considered:
 
  • The general understanding of the average, informed and reasonable consumer belonging to the sections of the public which the advertising addresses, according to the politically and socially recognized consumer model in the member states of the European Union – see Recital 18, UCPD
  • The nature of the product or service being advertised; in particular attention is to be given to whether the connection between the depiction of the human body and the product or service is socially acceptable, not discriminatory or derogatory
  • The situation in which the consumer comes into contact with the advertising
  • The advertising medium
  • The character of the medium by which the advertising is disseminated
  • Aspects of the protection of children and minors, in particular if they are directly addressed or the advertising appears in public place
  • The generally accepted basic values in society and the prevailing views of decency and morality
  • Social realities, as represented, for example, in the editorial content of the media
 

1.3 DW’s Advertising with celebrities EN / DE

 
The German Advertising Standards Council has received repeated complaints about advertisements in which prominent figures, especially politicians, are portrayed, obviously without their knowledge or consent, for the purpose of commercial advertising. The Council is unable to investigate these complaints since they relate to a breach of the law which, being the self-regulatory body of the German advertising industry, it has no mandate to prosecute. Complainants are referred to the legal situation as described in the following and are advised to enforce their rights in the courts if they so wish:
 
  • Images and names of people, and other representations constituting part of an individual’s private sphere, must not be used except with the consent of the individual concerned
  • The sole exception from this rule is if the individual concerned, as is the case with national politicians, is a figure from contemporary history and the emphasis is visibly on purposes of of information and documentation rather than business interests
 

Legislation on advertising with politicians and celebrities

 
Relevant laws:
 
  • The ’foundation’ German Law is the Constitution of the Federal Republic of Germany (Grundgesetz - GG Art. 1, 2 (1) General right to protection of personality; article 5 Freedom of expression) EN / DE
  • The German Civil Code EN / DE Section 12 Right to a name
  • German Artistic Copyright Act Kunsturhebergesetz (KUG) DE Articles 22 and 23, and 33

 

Human dignity

Articles 1 and 2 (1) of the Grundgesetz (GG) or Constitution provide the so-called ‘General right to protection of personality’
 
Art. 1 (1): Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority
Art. 2 (1): Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law
 
Freedom of expression: Art. 5 GG; this freedom is not limitless; according to the settled case law (see point 5 of Guidelines of Summary BGH, judgment of 26.10.2006 aka BIXT vs Lafontaine) of the German Federal Constitutional Court the protection of Art. 5 GG also includes commercial expressions of opinion and pure commercial advertising that are evaluative and influential (see Benetton case)
 

The right to one’s own name

Sect. 12 German Civil Code: If the right of a person to use a name is disputed by another person, or if the interest of the person entitled to the name is injured by the unauthorised use of the same name by another person, the person entitled may require the other to remove the infringement. If further infringements are to be feared, the person entitled may seek a prohibitory injunction
 
The right of one’s own image
Arts. 22 and 23 (1.1) and 23 (2) KUG here
Case law related to the above is summarised here:
 
Checklist for use of names and images of celebrities for advertising purposes for free and without consent: this is a recommendation/ proposal from a legal practitioner Dr. Thomas Schwenke. This is sensitive and potentially expensive territory; it may be appropriate to seek specific legal advice before commitment
 

1.4 ICC Advertising and Marketing Communications Code 

 
While the ICC Code is ‘recognised’ by the German Self-Regulatory Organisations, and is referenced in adjudications, it does not play the central role in Germany that it does in some other countries, so we have not extracted significantly in this section.The full code is here:
 
The key articles from General Provisions that are most referenced are (2) Social Responsibility and (5) Truthfulness. These are shown below:
 

Article 2. Social responsibility

  • Marketing communications should respect human dignity and should not incite or condone any form of discrimination, including that based upon ethnic or national origin, religion, gender, age, disability or sexual orientation
  • Marketing communications should not without justifiable reason play on fear or exploit misfortune or suffering
  • Marketing communications should not appear to condone or incite violent, unlawful or anti-social behaviour
  • Marketing communications should not play on superstition
 

Article 5. Truthfulness

  • Marketing communications should be truthful and not misleading
  • Marketing communications should not contain any statement, claim or audio or visual treatment which, directly or by implication, omission, ambiguity or exaggeration, is likely to mislead the consumer, in particular, but not exclusively, with regard to: 
 
  • Characteristics of the product which are material, i.e. likely to influence the consumer’s choice, such as: nature, composition, method and date of manufacture, range of use, efficiency and performance, quantity, commercial or geographical origin or environmental impact
  • The value of the product and the total price to be paid by the consumer
  • Terms for delivery, exchange, return, repair and maintenance
  • Terms of guarantee
  • Copyright and industrial property rights such as patents, trade marks, designs and models and trade names
  • Compliance with standards
  • Official recognition or approval, awards such as medals, prizes and diplomas
  • The extent of benefits for charitable causes
 
Other significant elements of the ICC Code are in detailed chapters, accessible from the linked document above and covering:
 

Chapter A: Sales Promotion

Chapter B: Sponsorship

Chapter C: Direct Marketing and Digital Marketing Communications

Chapter D:  Environmental Claims in Marketing Communications

 

2. LEGISLATION

 

2.1. The Law Against Unfair Competition 

 

UWG DE / EN (full law, 2019 translation). The UWG is amended by the August 2021 Law to Strengthen Consumer Protection in Competition and Trade Law (DE) effective May 28, 2022, which delivers inter alia the 2019/2161 ‘Omnibus’ Directive clauses relating to search rankings, consumer reviews and international marketing. The amends are set out in English here and shown below

 

  • The Unfair Commercial Practices Directive 2005/29/EC, from which the UWG is derived is, in this marketing/ advertising context the principal consumer protection legislation in Europe, and one of the foundations of self-regulatory advertising codes. The UWG is particularly important in Germany, as the Self-Regulatory Organisation WBZ applies the act, especially when assessing competitive claims. WBZ describes the law as the ‘the most important in advertising regulation.’
  • The full law is available from the links above; we set out below the clauses that most directly relate to marketing communications/ advertising; significant clause amends in italics

 

Section 5 Misleading Commercial Practices (B2C and B2B)

 

  1. Unfair competition is committed where a person engages in a misleading commercial practice which is likely to cause the consumer or other market participant to take a transactional decision which he would otherwise not have taken.
  2. A commercial practice shall be deemed to be misleading if it contains untruthful information or other information suited to deception regarding the following circumstances:

 

  1. The essential characteristics of the goods or services, such as availability, nature, execution, benefits, risks, composition, accessories, method or date of manufacture, delivery or provision, fitness for purpose, uses, quantity, specification, after-sale customer assistance, complaint handling, geographical or commercial origin, the results to be expected from their use, or the results or material features of tests carried out on the goods or services
  2. The reason for purchase such as the existence of a specific price advantage, the price or the manner in which the price is calculated, or the conditions on which the goods are supplied or the services provided
  3. The nature, attributes or rights of the entrepreneur such as his identity, assets, including intellectual property rights, the extent of his commitments, his qualifications, status, approval, affiliation or connections, awards or distinctions, motives for the commercial practice or the nature of the sales process
  4. Any statement or symbol in relation to direct or indirect sponsorship or approval of the entrepreneur or of the goods or services
  5. The need for a service, part, replacement or repair
  6. Compliance with a code of conduct by which the entrepreneur has undertaken to be bound when he makes reference to such commitment; or
  7. The rights of consumers, particularly those based on promised guarantees or warranty rights in the event of impaired performance

 

  1. A commercial practice shall also be deemed to be misleading if

 

  1. in connection with the marketing of goods or services, including comparative advertising, it creates a risk of confusion with other goods or services or with the trade mark or other distinguishing mark of a competitor
  2. it is used to market a product in a member state of the European Union as identical to a product made available on the market in other European Union Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors
     

 

  1. Information within the meaning of subsection (1), second sentence, shall also be deemed to include information forming part of comparative advertising as well as pictorial illustrations and other events that are targeted/ aimed at and are suitable for, taking the place of (replacing) such information
  2. 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. 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. (Note: i.e. misleading to base sales promotions on price cuts if the original (higher) price has only been demanded for an unreasonably short period of time (‘moon price advertising’ - Mondpreiswerbung)

 

Section 5a Misleading by omission

 

​(1) It is also unfair to mislead a consumer or other market participant by withholding essential information

 

1. which the consumer or other market participant needs in the respective circumstances in order to make an informed business decision, and

2. the withholding of which is likely to induce the consumer or other market participant to make a business decision that he/ she would not otherwise have made.

 

(2) Withholding is also considered to be:

1. The hiding of material information,

2. The provision of material information in an unclear, unintelligible or ambiguous manner and

3. Failure to provide material information in a timely manner.

 

(3) When assessing whether material information has been withheld, the following must be taken into account:

1. The limitations of space or time imposed by the medium used to communicate the commercial practice and

2. Any measures taken by the entrepreneur to make the information available to consumers by means other than the medium used to communicate the commercial practice.

 

(4) Anyone who does not make identifiable the commercial intent of a commercial practice is also acting unfairly, unless this is directly apparent from the context, and where such failure to identify the commercial intent is suited to causing the consumer or other market participant to take a transactional decision that he/ she would not have taken otherwise. An act in favor of a third party entrepreneur does not have a commercial purpose if the acting party does not receive any remuneration or similar consideration for the act from the third party entrepreneur or does not accept a promise of such a consideration. Receipt or promise of consideration will be presumed unless the agent can credibly demonstrate that he/she has not received such.

 

Invitation to Purchase

 

5b. Material information

  1. 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, the following information shall be deemed to be material within the meaning of subsection (2) if not already apparent from the context:
     
  1. All main characteristics of the goods or services to an extent appropriate thereto and to the communication medium used
  2. The identity and the geographical address of the entrepreneur and, where applicable, the identity and geographical address of the entrepreneur on whose behalf he is acting
  3. The final 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
  4. Arrangements for payment, delivery and performance, as well as complaint handling policies (deleted from May 28, 2022) so far as they depart from the requirements of entrepreneurial/ professional diligence; and
  5. The existence of a right of withdrawal or cancellation
     
  1. Such information shall also be deemed to be material within the meaning of subsection (2) as shall not be omitted in respect of consumers or by virtue of Union Regulations pursuant to legal provisions for the implementation of Union Directives for commercial communication including advertising or marketing. (Meaning: information requirements established by national laws which implement EU law relating to commercial communications, including advertising, shall be regarded as material. This will apply to information requirements found in TMG (Arts 5/ 6 EN)
  2. When assessing whether any information has been omitted, account must be taken of:
     
  1. limitations/ restrictions of space or time imposed by the medium used to communicate the commercial practice
  2. all measures taken by the entrepreneur to provide the consumer with the information by means other than the means of communication referred to in point 1

 

 

Section 6. Comparative advertising

 

  1. Comparative advertising means ‘any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor’ 
  2. Unfairness shall have occurred where a person conducting comparative advertising uses a comparison which:

  1. Does not relate to goods or services meeting the same needs or intended for the same purpose
  2. Does not objectively relate to one or more material, relevant, verifiable and representative features of the goods concerned, or to the price of those goods or services
  3. Leads in the course of trade to a risk of confusion between the advertiser and a competitor, or between the goods or services offered, or the distinguishing marks used by them
  4. Takes unfair advantage of, or impairs, the reputation of a distinguishing mark used by a competitor 
  5. Discredits or denigrates the goods, services, activities or personal or business circumstances of a competitor; or
  6. Presents goods or services as imitations or replicas of goods or services sold under a protected distinguishing mark

 

 

The Blacklist

 

Annex to Section 3: Thirty B2C commercial practices known as the Blacklist - specific misleading and aggressive commercial practices which are to be regarded as unfair and unlawful under any circumstances, as per s. 3 (3) UWG). The full list is here; the most relevant extracts in this commercial communications context are:

5. Making an invitation to purchase goods or services within the meaning of Section 5a subsection (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;

6. Making an invitation to purchase goods or services within the meaning of Section 5a subsection (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

7. Making the false statement that certain goods or services will only be available generally or on particular terms for a very limited time, in order to elicit an immediate transactional decision from the consumer without the latter having the time and the opportunity to make an information-based decision

11. Using editorial content for the purpose of sales promotion where the entrepreneur has paid for this promotion, without such connection being clearly identifiable from the content or by images or sounds (advertorial)

11a (from amendment to the UWG effective May 28, 2022) Covert advertising in search results. The display of search results based on a consumer's online search query without clearly disclosing any paid advertising or special payments that serve to achieve a higher ranking of the respective goods or services within the search results;

23. Making the false statement, or creating the false impression, that the entrepreneur is a consumer or is not acting for purposes relating to his business, trade, craft or profession

28. Including in an advertisement a direct exhortation to children to purchase the goods or services marketed or to persuade their parents or other adults to do so

 

 

2.2. Broadcast/ AV rules

 

The State Media Treaty DE / EN effective November 7, 2020 replaces the Interstate Broadcasting Treaty and now covers media platforms and media intermediaries including, for example, online audio and video libraries, search engines, streaming providers and online social networks. Below are extracts related to advertising content; see article 8 in the linked document for full provisions

 

  • Article 8 Advertising principles (1) Advertising and teleshopping shall not:

 

1. Prejudice respect for human dignity

2. Include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation

3. Be misleading or prejudice the interests of consumers, or

4. Encourage behaviour prejudicial to health or safety as well as grossly prejudicial to the protection of the environment

10. Advertising and teleshopping for alcoholic beverages shall not promote excessive consumption of such beverages

 

  • The third of the bullet points above re misleadingness does not reflect the AVMS Directive and its amending Directive 2018/1808, neither of which addresses misleadingness which is the job of the UCPD

 

3. ENVIRONMENTAL CLAIMS

 

3.1. Self-regulation

 

Applicable to all marcoms containing environmental claims regardless of the medium, including labelling, package inserts, promotional and point-of-sales materials, product literature as well as via telephone or digital or electronic media such as e-mail and the Internet

 

 

3.2. 'Horizontal' legislation

  • The Unfair Commercial Practices Directive UCPD 2005/29/EC transposed into German law by the Act Against Unfair Competition UWG DE / EN 
  • In Germany competitors may challenge environmental claims as unfair commercial practices before national courts, assessed against the UCPD / UWG; see guidance below

 

European Commission guidance

Guidance on the application of Directive 2005/29/EC on Unfair Commercial Practices December 2021, Section 4.1.1. Environmental claims​

 

4. PRICING IN ADVERTISING

 

Legislation (1). Act Against Unfair Competition (UWG) DE / EN

Relevant clauses extracted; structure simplified

 

Note: stating prices correctly in advertising can be difficult from a regulatory perspective. If uncertain, check with your/ your client’s lawyers. The following, as with all of the contents of this website, does not constitute advice, just what the rules say

 

Section 5 (1) No. 2; false statements:

 

2.  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 5a No. 3 UWG: misleading omissions  

 

  • 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 5 (4) UWG misleading action

 

 (4) 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

 

Point 21 Annex

 

  • 21.  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

 

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)

 

Guidance and case law

 

Legislation (2)

 Price Indication Ordinance PAngV DE

See reference to amends in the final para of this section

 

  • Section 1 (1): anyone who, as a supplier of goods, advertises to consumers giving an indication of the price, must state the final/ total price to be paid, including VAT and other price components
  • ‘Other price components’ in this regard are all prices and costs included when calculating its final prices (per WBZ Review). They are costs that are an integral part of the price (Para. 23 – C-476/14). These will include the delivery/ shipping costs (Federal Supreme Court, judgement of 16.12.1982, ref. I ZR 155/80) Tooltip: As a final price, the selling price must necessarily include the unavoidable and foreseeable components of the price, components that are necessarily payable by the consumer and constitute the pecuniary consideration for the acquisition of the product concerned (see, by analogy, judgment of 18 September 2014 in Vueling Airlines, C‑487/12, EU:C:2014:2232, paragraph 36). (Para. 37, C-476/14)
  • In the case of certain products (goods offered pre-packaged, in open packs or as sales units without wrapping by weight, volume, length, area) a basic price i.e. the price per unit of quantity; also known as unit price, must also be specified next to the total price, unless it is the same as the total price (s. 2(1) PAngV)
  • Under § 1 (6) sentence 2 of the Price Indication Ordinance, the price in the advertising must be unambiguous, easily identifiable and clearly legible or otherwise easy to understand. In the breakdown of prices, the indication of the final price must be particularly emphasised
  • Section 1 (1), 1st sentence and Section 1(6), 2nd/ 3rd sentence of the Price Indication Regulation comprises standards to regulate market conduct for the purpose of informing consumers and providing them with optimum price comparison possibilities

 

Commentary on UWG influence in pricing in advertising, and where it interacts with the Pricing Ordinance is brought together in the linked document below:

http://www.g-regs.com/downloads/DEGenUWGPricingCommentary.pdf

 

Both the UWG and the Pricing Ordinance have been amended as a result of provisions introduced by Directive 2019/2161/EU. Transpositions of those amends into German Law have been made by the August 2021 Law to Strengthen Consumer Protection in Competition and Trade Law (DE) and the Ordinance amending the Price Indication Ordinance (DE) of November 2021. Both of these acts come into force May 28, 2022. The UWG amends do not affect the pricing clauses; the directive' s pricing clauses, extracted here, are transposed into the ordinance under section 3/11

 

5. ‘SHOCK’ ADVERTISING

 

Use of emotional advertising which draws attention to social or political problems or expresses an entity’s attitude to a social issue, where the purpose is not exclusively commercial, is permitted under the following judgement:

 

From legislation: 

‘Basic Law’ for the Federal Republic of Germany Grundgesetz GG EN / DE

  • Article 5.1. Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures, and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship

 

Case law

Federal Constitutional Court cases:

 

 

 
 
Key points

 

  • Advertising is covered by the constitutional protection of freedom of expression (traditionally this has not been the case)
  • The Benetton Case established that article 5 GG also covers ‘commercial statements and pure commercial advertising which include evaluative, opinion-forming content’ (para. 40, Benetton I case)
  • The 3 Benetton print ads all drew attention to societal problems and consequently were within scope of protection of article 5.1 Basic Law (GG)
  • The twin purposes - increasing profits by gaining the public’s attention AND drawing attention to social, political or current societal issues can co-exist without contradiction (para. 24 Benetton II case). The fact that an advertiser also seeks to profit from the public attention created by the associated imagery cannot be used to establish a violation of human dignity (under s. 1.1 GG)
  • In the case of Benetton II (the HIV ad), the Federal Court of Justice took the view that the advertising exploited people's suffering for commercial advantage, and was therefore incompatible with Article 1.1 of the GG (Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.) This ruling was appealed
  • The Constitutional Court held that the advertising merely drew attention to the suffering of the people concerned and left it to the public to draw their own conclusions

 

 
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C. Channel Rules

1. TV/Radio/VOD

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)

 

CHILDREN

 

For clauses related to marcoms to children, see children sector on the home page of this website or the linked files above under applicable legislation and guidelines

 

PRODUCT PLACEMENT 

 

  • Permitted for both public service and commercial broadcasters under circumstances outlined below (Art. 8 (7) MSTV)
  • Further guidance on product placement is contained in both the Media Authorities TV Guidelines DE / EN (Sect. 4) for commercial broadcasting and the ARD/ ZDF Guidelines DE / EN (Sect. 9 (4)) for public service broadcasting
  • For Commercial Broadcasting: VRPT Code of Conduct for Product Placement DE (provisions not referenced in the linked file below)
  • Key clauses from the first two sources referenced in this list are here 
  • Products on TV under the Interstate Media Treaty from SKW Schwarz Rechtsanwälte/ Lexology April 2022 is a good insight into the legal practicalities of product placement in broadcast and online 

 

SPONSORSHIP

 

State Media Treaty, article 10, applicable to public service and commercial broadcasting

 

  • The existence of a sponsorship agreement must be clearly indicated; In programmes which are partially or wholly sponsored, the financing by the sponsor shall be pointed out in justifiable brevity and in an appropriate manner at the beginning or at the end of the programme (Art. 10 (1) MSTV)
  • The reference may also be by means of a moving image. Alongside or in place of the name of the sponsor the company logo or a trademark, another symbol of the sponsor, a reference to his products or services or a similar distinctive sign may be shown (Art. 10 (1) MSTV)
  • The content and scheduling of a sponsored programme must not be influenced by the sponsor in such a manner that the editorial responsibility and independence of the broadcaster are prejudiced (Art. 10 (2) MSTV)
  • Sponsored programmes must not encourage the sale, purchase, rental or lease of products or services of the sponsor or a third party, in particular by making special references (Art. 10 (3) MSTV)
  • News and political information programmes may not be sponsored. The transmission of sponsorship logos is prohibited in children's programmes and religious broadcasts (Art. 10 (4) MSTV)
  • Clauses 1 to 4 also apply to teleshopping channels (Art. 10 (5) MStV); section 8 para 3 clause 3 and paras 8 to 10 apply accordingly (Art. 10 (6) MStV)

 

 

RADIO

 

  • The rules from our earlier content section B apply to radio advertising
  • The definition of broadcasting from Art. 2 (1) MSTV includes radio within its scope, so the generic rules for AV advertising/ product placement/ sponsorship will apply to commercial communications in scheduled radio programmes offered via analogue, digital, internet (webcasting)

 

 

 

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2. Cinema/Press/Outdoor

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

 

 

 

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3. Online Commercial Communications

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

 

AD MARKERS/ IDENTIFIERS: HASHTAGS FOR SOCIAL MEDIA 

 

  • A single #ad, especially when amongst other hashtags at the end of a post, may not be enough to mark an ad. Key Case OLG Celle, the Higher Regional Court Decision 8.6.2017, 13 U 53/17 re the use of #ad. In this case, a well-known Influencer with more than 1 million followers published a post on Instagram for the drugstore chain Rossmann, for which he was paid:

“To all savers/ smart spenders: Note/ Listen up ONLY tomorrow there will be a 40% discount on eye make-up in all branches of #rossmann & on the online shop! Have fun shopping! @mein_r. Eyes: RdeL Y. Mascara & M.N. Y. The Rock Nudes Eye Shadow Palette. #b. #ad #eyes #shopping #discount #40%”

  • The Court ruled it infringed s. 5a (6) UWG (see above); in this case, the use of #ad was not sufficient to identify the commercial purpose of the post, stating that that must be apparent and recognisable at first glance / sight (auf den ersten Blick hervortreten) - see para 9 of the judgement (DE), so that there can be no doubt to the average member of the respective consumer group
  • In the case above, commercial purpose is not apparent because #ad is used at the end of the post, 2nd in a line of 6 hashtags, effectively hiding the #ad. In addition, it was not clear from the context that it was advertising; there was no difference in presentation compared to non-commercial posts from other Rossman Influencers; emojis were used, which suggested private versus commercial use, impeding identification of the post’s advertising nature ‘at first glance’
  • The Court left open the question as to whether the use of hashtags #ad is in principle suitable to identify as advertising a post on social media
  • The State Media Authorities' (ALM) May 2022 Guidelines for labelling advertising in online media DE / EN provide the latest labelling requirements

RECOMMENDATIONS/ REFERRALS 
OLG Hamm, decision dated 10.9.2013, 4 U 48/13, Para. 108

 

  • Companies may not ‘buy’ (in this case with vouchers) the opinion of customers and ask them to place that opinion on a consumer-opinion portal/ review/ price comparison website
  • In any event, the creation and advertising of such assessments is misleading if the remuneration for the assessment is not expressly referenced (see for a similar case OLG Hamm, judgment of 23.11.2010, 4 U 136/10, mw N.)

 

RELATED CASE

 

  • First case where a YouTuber has been fined for surreptitious advertising: ‘Flying Uwe’ (Uwe Schüder) operates two channels on YouTube with some 1.4 million (quite sad) subscribers
  • Media Council of MA Hamburg/ Schleswig-Holstein imposed a fine of 10,500 euros for violating advertising provisions in art. 58 (3) in conjunction with s. 7 (5) RStV for not labelling his videos as advertising, or as Dauerwerbesendung/ infomercials
  • Flying Uwe was presenting products from companies of which he was the CEO, in the field of fitness clothing and dietary supplements. This case confirmed that the advertising principles from RStV also apply to telemedia when providers (in this case, YouTubers) produce television-like content. Therefore, infomercials must be announced as such at the beginning and labelled as such throughout their course (Art. 58 RStV).  Source: press release from Media Council of MA HSH DE

 

 

 

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4. Cookies & OBA

SECTION C: COOKIES AND OBA

 

 

Privacy issues should be reviewed with specialist advisors

 

NEWS/ ISSUES

 

Privacy Sandbox news and updates 

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

 

 

GUIDANCE COOKIES AND OBA

 

 

KEY CLAUSES COOKIES RULES

 

Germany has not explicitly implemented the Cookie Directive, i.e. the amended Article 5 (3) of Directive 2002/58/EC. It was originally agreed by the relevant authorities that the following provisions from the Telemedia Act (TMG) fulfil the requirements. Subsequently, 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 note above re the finalisation of the new cookie rules under the Telecommunications and Telemedia Data Protection Act TTDSG (DE) in force December 1, 2021

 

  • Section 13 (1) TMG: the service provider must inform the recipient of the service at the beginning of the session about the nature, scope and purpose of the collection and use of personal data… in generally understandable form, unless such information has already been provided. In the case of an automated procedure that permits subsequent identification of the recipient of the service and prepares the collection or use of personal data, the recipient of the service must be informed at the beginning of this procedure. The content of this information must be accessible by the recipient of the service at any time
  • ‘Automated procedures’ cover the use of cookies: it means any procedure including the storing of information, or the gaining of access to information already stored, in the terminal equipment of a subscriber or user, per article 5 para 3 e-Privacy Directive
  • Section 12 (1)/ (2) TMG: The service provider may collect and use personal data for the provision of telemedia (or for other purposes) only to the extent that this act or another statutory provision referring expressly to telemedia permits it, or that the recipient of the service has given his/ her consent
  • Section 15 (1) TMG: the service provider may collect and use the personal data of a recipient of a service only to the extent necessary to enable and invoice the use of telemedia 

 

CONSENT TO COOKIES

 

Privacy rules for targeted advertising in the UK and EU. Reed Smith/ Lex August 2023

 

Note that the rules immediately below are not reviewed in the context of GDPR and how that impacts (cookies) consent. Guidance is from the WP29 document: Guidelines on Consent under Regulation 2016/679 (May 2020). See also introductory para above re TTDSG

 

Section 13 (2) TMG provides that consent can be declared by electronic means if the service provider:

 

  1. Ensures that the recipient of the service has consciously and unambiguously given his/ her consent
  2. A record of the consent is kept
  3. The recipient of the service can access the consent declaration at any time
  4. And the recipient of the service can revoke the consent at any time with effect for the future

 

OBA

 

European Union: Targeted advertising on social networks: Is consent mandatory? (EN)
Haas Avocats 19 September 2023

Meta’s Ad Practices Ruled Illegal Under E.U. Law. From the NYT Jan 2023

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

Facebook's Meta to ban adverts that target people on 'sensitive topics' politics, race and sexual orientation.

Effective 19 January 2022

 

  • OBA is the same any other form of advertising in as much as it’s subject to the content rules set out in our earlier content section B, except those rules 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 other key influence in marketing communications in Germany is the Unfair Competition Act UWG, linked above
  • The ICC Code linked above covers OBA in their chapter C, article C22, extracted here
  • Now that the State Media Treaty MSTV (DE / EN) extends further online, scope explained here, AV commercial communications online will be subject to the commercial communications rules under article 8. These are essentially unchanged from the former Interstate treaty requirements. as they are transposed from the AVMS Directive which is largely unchanged in content rules
  • GDPR lawful processing rules may apply; the definitive guidance on profiling in this context is from the Article 29 Working Party (now the European Data Protection Board EDPB) Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679 
  • Der Deutsche Datenschutzrat Online-Werbung DDOW, the German Data Protection Council for Online Advertising, is an initiative launched by ZAW to co-ordinate Self-Regulation in OBA and is associated with the EDAA

 

 

The OBA icon above, which can be found on digital advertising and on web pages to signal that OBA is on those sites, is licensed to participating companies by the EDAA. The consumer is provided with a link on the icon to the OBA Consumer Choice Platform http://www.youronlinechoices.eu/, a pan-European website with information on how data is used, a mechanism to ‘turn off’ data collection and use, and a portal to connect with national Self-Regulatory Organisations for consumer complaint handling

 

 

 

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5. Emails & SMS

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

 

 

GUIDANCE

 

 

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
 

INFORMATION OBLIGATIONS 

 
  • S. 6 (1) TMG: In the case of commercial communications which are telemedia or parts of telemedia Definition As a general rule, services that have previously been classified as teleservices or as media services now fall under the definition of telemedia. This applies, for example, to online shopping, online newspapers and newsletters, search engines, video-on-demand services, and the distribution of advertising e-mails.  Instead, the act now defines all electronic information and communication services (with the exception of telecommunication services consisting entirely of signal distribution via telecommunications networks and broadcasting) as telemedia https://www.lexology.com/library/detail.aspx?g=2bc98a4a-3b5f-451a-8f71-171cac8b7e12 service providers must observe at least the following preconditions (transposed from the e-Commerce Directive 2000/31/EC):
 
  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
 
  • 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 (S. 6 (2) TMG)
  • An unacceptable nuisance shall always be assumed in the case of advertising using a communication ….c) where there is no valid address to which the recipient can send an instruction to terminate transmission of communications of this kind, without costs arising by virtue thereof, other than transmission costs at basic rates (S. 7, UWG)
 

THE IMPRINT 

 

 

Tell-a-friend case 

 

Privacy issues should be reviewed with specialist advisors

 
  • In 2013, a court ruled that emails sent to users by means of tell-a-friend campaigns are in violation of the law, because no consent was sought (3.16/ 3.17 DC Guidance (DE)):
  • In a ruling of 12 September 2013, I ZR 208/12, the Federal Court of Justice held that unsolicited e-mails sent via ‘send-to-a-friend’ functionality on a website were considered to be unlawful promotional email on the basis of S. 7 (2) (3) UWG: ‘An unacceptable nuisance shall always be assumed in the case of advertising using an automated calling machine, a fax machine or electronic mail without the addressee’s prior express consent’.
  • In this particular case, the e-mail was sent through the mail server of the website provider and in their name. The court ruled that it is irrelevant that a user initiated the sending, since the indirect promotional nature of 'send-to-a-friend' e-mails falls within the scope of German direct marketing regulation under Sec. 7 UWG. The court held that responsibility to obtain consent rested with the website service provider, not the user

 
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6. Own Websites & SNS

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

 

THE IMPRINT 

 

  • Service providers must render ‘easily, directly and permanently accessible for telemedia which are offered commercially’ specific information under an ‘Imprint’ (Impressumspflicht, or impressum), reflecting requirements from Part 2, Section 5 of the Telemedia Act (EN), and transposing e-Commerce Directive 2000/31/EC rules (art. 5)
    http://www.g-regs.com/downloads/DEGenWebsiteInfo.pdf
  • An example is here: https://www.werberat.de/content/impressum 
  • The imprint obligation extends to social media, e.g. business-like profiles on Facebook, Twitter, Xing, Instagram, Vimeo, Google Plus etc.: LG Berlin Decision of 28.03.2013, Ref: 16 O 154/13. If the profile has a business character, the imprint obligation will apply 
  • Case law confirmed that a notice a maximum of two clicks from the home page meets statutory requirements. The Federal Court of Justice (BGH) requires that links be clearly named, for example by designations such as ‘Contact’, ‘About us’ or just ‘Imprint.’ BGH judgment 20/07/2006 Ref: I ZR 228/03 (DE)

 

INFORMATION REQUIREMENTS

 

  • The Telemedia Act (EN) Section 6, transposing the e-Privacy Directive 2002/58/EC, also requires specific information in commercial communications:

 

  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 that 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

 

  • 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
  • Video sharing platform providers must provide a function whereby users who upload usergenerated videos can state whether such videos contain audiovisual commercial communication
  • Video sharing platform providers must mark audiovisual commercial communications that users have uploaded to the video sharing platform service as such, insofar as they have become aware of this in accordance with paragraph 3 (above) or by other means

 

VLOGGING/ BLOGGING (extracts only)

 

  • State Media Authorities: May 2022 Guidelines for labelling advertising in online media DE / EN. 'These guidelines issued by the media authorities provide assistance with the labelling requirements for advertising on social media (Instagram, Twitter, Facebook, YouTube, TikTok, Twitch etc.) and other online media, such as blogs and podcasts. They are based solely on the advertising regulations established in the German Interstate Media Treaty (MStV) and German Telemedia Act (TMG), which serve to protect users from being misled and to make commercial content transparent. Video and audio offerings are governed by different labelling requirements compared to image/text offerings, so a distinction must be made between the two (see ‘Media-law bases’ box).'
  • The flyer sets out various forms of relationship between product and vlogger/blogger/ influencer by channel and advises on whether identification is required and where it should be placed. The most frequently used form of identifier is a clearly legible “Werbung” or “Anzeige” [advertising or ad], generally required at the beginning of the post/ video 

OTHER SOCIAL MEDIA INTERACTIONS 

 

As websites, including ‘commercial’ social media pages, will often be the source of emails or other communications generated to users, the rules expressed in the preceding section Direct Online communications should be observed, as user consent is in this context, especially related to e.g. ‘tell-a-friend’ techniques, cannot be assumed, and as there are other information requirements that apply to all forms of user communications

 

GDPR

 

Privacy issues should be reviewed with specialist advisors

 

  • In the event that data processing (which may include cookies, depending on their type) identifies individuals, then lawful processing rules from the GDPR may apply.
  • 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 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 

 

 

 

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7. Native Advertising

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

 

 

 

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8. Telemarketing

 

 

Following feedback, we no longer cover Telemarketing 

9. Direct Postal Mail

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 

 

B1. ICC Advertising and Marketing Communications Code (EN). Chapter C Direct Marketing

Article C1. Identification and transparency ​
Article C2. Identity of the Marketer  
​Article C3. The Offer
Article C4. Presentation 
​Article C5. High-pressure tactics

 

B2. Code of Ethics from the DDV Deutscher Dialog Verband

 

Note: the status of the linked document is unclear since the introduction of GDPR. The DDV has published more recently e.g. the Best Practice Guide "European General Data Protection Regulation: Effects on Dialogue Marketing", available only to members  

  • The members affiliated to the DDV observe the required consent of the addressee when sending advertising letters. In cases where legally permissible exemptions from the requirement of consent exist, direct mail advertising sent to new customers is not to be addressed to those persons who have entered their names in the DDV Robinson List (S. 3.2: DDV Robinson List for direct mail advertising)

 

C. Guidance/ case law 

Principle of opt-out consent; see WBZ Review EN

 

  • The person to whom the advertising is addressed must have made it understood to the sender that he/ she does not wish to receive any such advertising, e.g. through written or telephone communication (Federal Supreme Court, judgement of 16.02.1973, ref. I ZR 160/71, cited in: WRP 1973, 329) or as in OLG Munich case above, by email
  • There is no additional obligation to place a sticker on the letterbox ‘Advertising – no thank you’ (as per OLG Munich, ruling of 5.12.2013 Ref: 29 U 2881/13 and Higher Regional Court of Nuremberg, judgement of 04.11.2011, ref. 4 S 44/11, cited in: WRP 2012, 365)
  • If the recipient has not objected, advertising by letter is still anti-competitive on the grounds of harassment if it is forced on him/ her and it is perceived as bothersome because of its nature alone, irrespective of the content (see cases below)
  • The interest of the addressee to be spared from advertising has to be weighed up against the interest of the advertising company in promoting its products via advertising

 

Case examples related to the above are shown in the linked document here:

http://www.g-regs.com/downloads/DEGenDMcaseexamples.pdf

 

 

 

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10. Event Sponsorship/ Field Marketing

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
 

B7.  Data capture/ data sharing

 
  • If personal data is used in connection with sponsorship, the provisions of article 19 are applicable
 

 B8.  Artistic and historical objects

 
  • Sponsorship should not be conducted in such a way as to endanger artistic or historical objects
  • Sponsorship which aims to safeguard, restore, or maintain cultural, artistic or historical properties or their diffusion, should respect the public interest related to them
 

B9.  Social and environmental sponsorship

 
  • Both sponsors and sponsored parties should take into consideration the potential social or environmental impact of the sponsorship when planning, organising and carrying out the sponsorship
  • Any sponsorship message fully or partially based on a claim of positive (or reduced negative) social and/or environmental impact should be substantiated in terms of actual benefits to be obtained. Parties to the sponsorship should respect the principles set out in the ICC Business Charter for Sustainable Development (available from www.iccwbo.org)
  • Any environmental claim made with respect to the sponsorship should conform to the principles set out in chapter D, Environmental Claims in Marketing Communication

 

 B10.  Charities and humanitarian sponsorship

 
  • Sponsorship of charities and other humanitarian causes should be undertaken with sensitivity and care, to ensure that the work of the sponsored party is not adversely affected
 

B11. Multiple sponsorship

 
  • Where an activity or event requires or allows several sponsors, the individual contracts and agreements should clearly set out the respective rights, limits and obligations of each sponsor, including, but not limited to, details of any exclusivity. In particular, each member of a group of sponsors should respect the defined sponsorship fields and the allotted communication tasks, avoiding any interference that might unfairly alter the balance between the contributions of the various sponsors
  • The sponsored party should inform any potential sponsor of all the sponsors already a party to the sponsorship
  • The sponsored party should not accept a new sponsor without first ensuring that it does not conflict with any rights of sponsors who are already contracted and, where appropriate, informing the existing sponsors
 

B12.  Media sponsorship

 
  • The content and scheduling of sponsored media properties should not be unduly influenced by the sponsor so as to compromise the responsibility, autonomy or editorial independence of the broadcaster, programme producer or media owner, except to the extent that the sponsor is permitted by relevant legislation to be the programme producer or co-producer, media owner or financier
  • Sponsored media properties should be identified as such by presentation of the sponsor’s name and/ or logo at the beginning, during and/or at the end of the programme or publication content. This also applies to online material
  • Particular care should be taken to ensure that there is no confusion between sponsorship of an event or activity and the media sponsorship of that event, especially where different sponsors are involved
 

B13. Responsibility

 
  • As sponsorship is conceptually based on a contract of mutual benefit, the onus for observing the Code falls jointly on the sponsor and the sponsored party, who share the ultimate responsibility for all aspects of the sponsorship, whatever its kind or content
  • Anyone taking part in the planning, creation or execution of any sponsorship has a degree of responsibility, as defined in article 23 of the General Provisions, for ensuring the observance of the Code towards those affected, or likely to be affected, by the sponsorship

 

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The European Sponsorship Association (ESA) may also be able to help/ inform

 

 

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11. Sales Promotion

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

 

APPLICABLE LEGISLATION AND SELF-REGULATION 

 

 

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
 

2. KEY CLAUSES SELF-REGULATION

 

The ICC Advertising and Marketing Communications Code (EN), Chapter A extracts :

 

Article A2. Terms of the offer

 

  • Sales promotions should be so devised as to enable the consumer to identify the terms of the offer easily and clearly, including any limitations. Care should be taken not to exaggerate the value of the promotional item or to obscure or conceal the price of the main product

 

Article A4. Administration of promotions 

 

  • Sales promotions should be administered with adequate resources and supervision, anticipated to be required, including appropriate precautions to ensure that the administration of the offer meets the consumers' reasonable expectations. In particular:
  • The availability of promotional items should be sufficient to meet anticipated demand consistent with the express terms of the offer. If delay is unavoidable, consumers should be advised promptly and necessary steps taken to adjust the promotion of the offer. Promoters should be able to demonstrate that they have made, before the event, a reasonable estimate of the likely response. Where a purchase or a series of purchases are a precondition for obtaining the promotional item, promoters should ensure promotional items are sufficiently available to match the number of purchases being made
  • Defective goods or inadequate services should be replaced, or appropriate financial compensation given. Any costs reasonably incurred by consumers as a direct result of any such shortcoming should be reimbursed immediately on request
  • Complaints should be efficiently and properly handled
 

Article A6. Presentation to consumers 

 

  • Complex rules should be avoided
  • Rules should be drawn up in language that consumers can easily understand
  • The chances of winning prizes should not be overstated

 

Information requirements 

 

  • Sales promotions should be presented in such a way as to ensure that consumers are made aware, before making a purchase, of conditions likely to affect their decision to purchase

 

Information should include, where relevant:

 

  • clear instructions on the method of obtaining or participating in the promotional offer, e.g. conditions for obtaining promotional items, including any liability for costs, or taking part in prize promotions
  • main characteristics of the promotional items offered
  • any time limit on taking advantage of the promotional offer
  • any restrictions on participation (e.g. geographical or age-related), availability of promotional items, or any other limitations on stocks. In the case of limited availability, consumers should be properly informed of any arrangements for substituting alternative items or refunding money
  • the value of any voucher or stamp offered where a monetary alternative is available
  • any expenditure involved, including costs of shipping and handling and terms of payment
  • the full name and address of the promoter and an address to which complaints can be directed (if different from the address of the promoter)
  • Promotions claiming to support a charitable cause should not exaggerate the contribution derived from the campaign; before purchasing the promoted product consumers should be informed of how much of the price will be set aside for the cause

 

Information in prize promotions 

 

Where a sales promotion includes a prize promotion, the following information should be given to consumers, or at least made available on request, prior to participation and not conditional on purchasing the main product:

 

  • any rules governing eligibility to participate in the prize promotion
  • any costs associated with participation, other than for communication at or below standard rate (mail, telephone etc.)
  • any restriction on the number of entries
  • the number, value and nature of prizes to be awarded and whether a cash alternative may be substituted for a prize
  • in the case of a skill contest, the nature of the contest and the criteria for judging the entries
  • the selection procedure for the award of prizes
  • the closing date of the competition
  • when and how the results will be made available
  • whether the consumer may be liable to pay tax as a result of winning a prize
  • the time period during which prizes may be collected
  • where a jury is involved, the composition of the jury
  • any intention to use winners or winning contributions in post-event activities and the terms on which these contributions may be used

 

 

 

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D. Advice & Clearance

SECTION D SRO SERVICES

 

 

ADVICE AND CLEARANCE 

 

The German self-regulatory system has two organisations:

 

  1. Deutscher Werberat German Advertising Standards Council, deals with issues of taste, decency, and social responsibility:
    https://www.werberat.de/ 
    Key facts in English:
    https://werberat.de/content/english-keyfacts

COMPLAINTS HANDLING 

 

  • DW handles complaints from consumers, competitors and other interested parties
  • Submitted online or in writing

COPY ADVICE 

 

  • Copy advice is available only to members of ZAW (the German Advertising Federation) About ZAW (EN)
  • 3 free Copy Advices are included in the annual membership fee. Additional advice 400€
  • Feedback is usually given within 1-3 working days

 

 


 

 

  1. Wettbewerbszentrale - Zentrale zur Bekämpfung unlauteren Wettbewerbs e.V. Handles issues of unfair commercial practices by applying unfair competition law

Website:

https://www.wettbewerbszentrale.de/de/home/

Information in English:

https://www.wettbewerbszentrale.de/de/informationenglfranz/engl/

 

COMPLAINTS HANDLING 

  • WBZ handles complaints from consumers, competitors and other interested parties
  • Submitted online or in writing

 

COPY ADVICE

 

  • Copy advice is available only to members
  • And it’s free to those members
  • Feedback usually 1-3 working days, maximum of 7-10 days for more complex cases

 

 

CLEARANCE

 

Direct to broadcaster

Allow 3-5 days TV/VOD

For help contact the Traffic Bureau administration@trafficbureau.net

 

 

 

E. Links

SECTION E SOURCES/ LINKS

 

 

EUROPEAN LEGISLATION

 

GDPR

 

Regulation (EU) 2016/679 of the European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR came into force on 25 May 2018. 

https://eur-lex.europa.eu/eli/reg/2016/679/oj

The GDPR is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which was implemented in Germany by the new German Federal Data Protection Act; see later entry

 

European Data Protection Authority

Article 29 Working Party/ EDPB





The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC, the Personal Data Protection Directive. The arrival of the GDPR heralded the demise/ re-working of A29WP, and its replacement by the European Data Protection Board:

https://edpb.europa.eu/.

All documents from the former Article 29 Working Party remain available on this newsroom

Article 29 Working Party archives from 1997 to November 2016: 

http://ec.europa.eu/justice/article-29/documentation/index_en.htm.

Five more recent, significant documents:

 

 

Commercial practices: UCPD


Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ UCPD). This is the legislation that most impacts marketing and advertising in Europe and whose origins form the foundations of Self-Regulatory regimes. The core provisions relate to unfair commercial practices, defined as ‘likely to materially distort the economic behaviour with regard to the product of the average consumer.’ In turn, unfair commercial practices are those that:

 

  1. are misleading (misleading actions or misleading by omission) as set out in Articles 6 and 7, or
  2. are aggressive as set out in Articles 8 and 9: ‘use of harassment, coercion and undue influence.’ This clause more often relates to ‘active conduct’.

 

Annex I (known as ‘the blacklist’) contains the list of those commercial practices which ‘shall in all circumstances be regarded as unfair’. These are the only commercial practices which can be deemed to be unfair without a case-by-case test (i.e. assessing the likely impact of the practice on the average consumer's economic behaviour). The list includes e.g. encouragement to children to ‘pester’ (28), clear identification of commercial source in advertorial (11) and making ‘persistent and unwanted solicitations’ (26). The UCPD includes several provisions on promotional practices e.g. Article 6 (d) on the existence of a specific price advantage, Annex I point 5 on bait advertising, point 7 on special offers, points 19 and 31 on competitions and prize promotion, and point 20 on free offers. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.

https://eur-lex.europa.eu/eli/dir/2005/29/oj

Guidance: On 17 December 2021, the European Commission adopted the Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive (‘the UCPD Guidance’), updating the 2016 version.

 

The Omnibus Directive 

 

Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. This directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', sets out some new information requirements related to search rankings and consumer reviews under the UCPD 2005/29/EC, new pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful explanatory piece on the Omnibus Directive 2019/2161 from A&L Goodbody via Lexology here. Provisions are supposed to be transposed by November 2021 and in force in member states by May 28, 2022. Transpositions in Germany are shown under national legislation below.
https://eur-lex.europa.eu/eli/dir/2019/2161/oj

 

Pricing

 

Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement  on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked above; these are supposed to be transposed by November 2021 and in force in member states by May 28, 2022. The article concerned, 6a, is extracted here. Commission guidance on its application is below this entry.

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006

 

Commission notice: Guidance on the interpretation and application of Article 6a of Directive 98/6/EC of the European Parliament and of the Council on consumer protection in the indication of the prices of products offered to consumers; December 2021: 

https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52021XC1229(06)&from=EN

 

Comparative advertising

 

Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising. Article 4 of the MCAD provides that comparative advertising is permitted when eight conditions are met. The most significant of those for our purposes are a) it is not misleading within the meaning of Articles 2 (b), 3 and 8 (1) of this Directive or articles 6 and 7 of Directive 2005/29/EC (see above) and b) it compares goods or services meeting the same needs or intended for the same purpose. There are other significant conditions related to denigration of trademarks and designation of origin, imitation and the creation of confusion. Codified version:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0114

 

Audiovisual media

 

Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states.  From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32010L0013

 

AVMSD amendment

 

Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended.

Article 28b addresses video- sharing platform providers (VSPS), containing requirements to prevent violent, criminal, or otherwise offensive material and bringing the 'general' AV commercial communication rules such as those for the environment, human dignity, discrimination, minors etc. into these platforms. VSPS must also provide a functionality for users who upload user-generated videos to declare whether they contain commercial communications as far as they know or can be reasonably expected to know; VSPS must accordingly inform users. There has been some debate as to whether vloggers/ influencers are in scope, i.e. they or their output constitute an audiovisual media service. Definitive opinion/ recommendation is from the European Regulators Group for Audiovisual Media Services (ERGA) paper 'Analysis and recommendations concerning the regulation of vloggers.' The annex of the paper contains national examples. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020. 

https://eur-lex.europa.eu/eli/dir/2018/1808/oj

 

e-Privacy

 

Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, the ‘E-privacy Directive’). This Directive ‘provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector.’ The directive was amended by Directive 2009/136/EC; the ‘Cookie directive’, provisions found under article 5.3 of the E-Privacy Directive. Article 13 for Consent and ‘soft opt-in’ requirements

https://eur-lex.europa.eu/eli/dir/2002/58

 

The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector. Article 2 provides amends to the E-privacy Directive above

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136

 

e-Privacy Regulation draft (10 February 2021)

 

Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications):

https://data.consilium.europa.eu/doc/document/ST-6087-2021-INIT/en/pdf

Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
https://edpb.europa.eu/sites/default/files/files/file1/edpb_statement_20201119_eprivacy_regulation_en.pdf

February 2022 Clifford Chance/ Lex E-Privacy check-in: where we are, and where we're headed
March 2022 Härting Rechtsanwälte/ Lex ePrivacy Regulation: EU Council agrees on the draft

 

e-Commerce

 

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce')‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.’ Article 5 covers general information such as contact details from the ‘service provider’, which information should be made easily, directly and permanently accessible to the recipients of the service’. The Directive also sets out under article 6 more specific information requirements for commercial communications which are part of, or constitute, an information society service. These include identifiability requirements and accessibility to conditions for promotions.

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0031

 

The Digital Services Act

 

Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act). European Commission pages on the DSA are here. Wikipedia entry is here. Helpful legal commentary, which also addresses the Digital Markets Act, is from DLA Piper/ Lex February 2023: Online advertising: A regulatory patchwork under construction. Key marcoms issues for advertisers/ platforms are the identification of advertising material and parameters used for its targeting and the prohibition of advertising based on profiling that uses using special data categories such as religious belief, health data sexual orientation etc. (art.26), or if the platform has reason to believe the recipient is a minor (art. 28). The Regulation applies from February 2024. 

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32022R2065

 

The Digital Markets Act

 

Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act). European Commission pages are here; from those: 'Some large online platforms act as "gatekeepers" in digital markets. The Digital Markets Act aims to ensure that these platforms behave in a fair way online. Together with the Digital Services Act, the Digital Markets Act is one of the centrepieces of the European digital strategy.' Wikipedia entry is here.  Article 2a prohibits the processing, for the purpose of providing online advertising services, personal data of end users using services of third parties that make use of core platform services of the gatekeeper, unless the end user has been presented with the specific choice and has given consent within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679. The Regulation entered into force on 1st November 2022 and applied on 2nd May, 2023. Gatekeepers will be identified and they will have to comply by 6th March 2024 at the latest.

https://eur-lex.europa.eu/eli/reg/2022/1925

 

National legislation 

 

UWG

 

Act Against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb - UWG). The act aims to protect competitors, consumers and other market participants against unfair acts of competition. Described as advertising’s most important law, UWG implements the Unfair Commercial Practices Directive UCPD 2005/29/EC and Directive 2006/114/EC on misleading and comparative advertising. It also implements article 13 of the E-Privacy Directive 2002/58/EC on unsolicited commercial communications. It is not the state authorities that intervene in the event of unfair marketing practices, but competitors, trade associations, chambers of commerce and consumer organisations. According to § 8 UWG these parties have a legal right to take action against unfair commercial practices in the form of ‘injunctive relief’, such as a cease and desist order. The most significant institution to initiate proceedings against companies who infringe unfair competition law is the Centre for Protection against Unfair Competition (WBZ), which accepts complaints from consumers, competitors, and public authorities, as well as initiating its own investigations.

DE: https://www.gesetze-im-internet.de/uwg_2004/ 

EN: https://www.gesetze-im-internet.de/englisch_uwg/englisch_uwg.html

English translation as of April 2019

 

The UWG was amended by the Law to strengthen consumer protection in competition and trade law of August 17, 2021; this act inter alia transposes Directive 2019/2161/EU, which covers significant commercial territory such as price reductions (see below under Pricing) and the validity of consumer reviews and search rankings but does not necessarily hugely impact the content of commercial communications. There are implications for Influencer messaging, however, for 'invitations to purchase' and potentially for the way in which brands are presented multinationally. Section 5 of the UWG has this addition: 'A commercial act is also misleading if it is used to market a product in a member state of the European Union as identical to a product made available on the market in other European Union Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors.' Provisions in force May 28, 2022.

www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&jumpTo=bgbl121s3504.pdf (DE)

Explanatory GRS note in English:
www.g-regs.com/downloads/DEGenUWGAmendsAug2021ENnote.pdf

Pricing

 

Price Indication Ordinance. Preisangabenverordnung (PAngV). This law transposes Directive 98/6/EC on consumer protection in the indication of the prices of products offered to consumers. The purpose of the law is to establish ‘unit’ pricing procedures in pre-packed goods, open packs or as sales units without wrapping by weight, volume, length or area, in addition to the total price and the unit price including sales tax and other price components to be paid (total prices). The ‘parent’ Directive was referenced in a significant ECJ judgement on car pricing in advertising:

https://www.gesetze-im-internet.de/pangv_2022/BJNR492110021.html (DE)

 

The Ordinance amending the Price Indication Ordinance of November 2021 (Verordnung zur Novellierung der Preisangabenverordnung) transposes the amends made by the Directive 2019/2161/EU (see article 2) to the Product Pricing Directive 98/6/EC. These amends introduce, inter alia, some promotional pricing rules under Section 3/11 of the ordinance, set out in the extract from the 2019/2161 Directive here. Provisions in force May 28, 2022. Helpful December 2021 article explaining the rules and sanctions from CMS Germany here.

http://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&jumpTo=bgbl121s4921.pdf (DE)

 

 

Channel legislation

 

Online

 

Telemedia Act (Telemediengesetz or TMG). The TMG implements E-commerce Directive 2000/31/EC and regulates the use of consumers’ personal data generated through electronic means. Telemedia is defined here as ‘all electronic information and communications services, unless they are telecommunications services …or broadcasting’ (S.1 (1) TMG). Applies to the provision of online services such as websites and email; also covering search engines, news groups, webshops, chat rooms, and social media. Information obligations are in S.5 re legal notice/ Imprint and S.6.1 information to be provided in commercial communications. The DSK (see entry below) opinion is that data protection Sections 12, 15 (1) and 15 (3) TMG ceased to be applicable when the GDPR came into effect. Hence, in the absence of a lex specialis, the provisions of the GDPR apply by default. Piece from Covington and Burling. Below EN link unofficial and non-binding translation of key provisions related to the provision of information in commercial communications:

https://www.gesetze-im-internet.de/tmg/BJNR017910007.html (DE)

http://www.g-regs.com/downloads/DE_TelemediaActTMG2020amendENb.pdf (EN key clauses)

 

Law amending the Telemedia Act and other laws (Gesetz zur Änderung des Telemediengesetzes und weitere Gesetz) in force 26 November 2020. This act applied to the TMG some of the amends Directive 2018/1808 made to the AVMSD 2010/13/EU. The Directive expands the definition of an audiovisual media service so that e.g. some forms of video-sharing platforms come into scope and are required to identify commercial communications in user-uploaded videos; see section 6 in the linked file. There’s some helpful context from the EU co-ordination note in English here. Meanwhile, the amending act is here (DE) and the Telemedia act also in German (key clauses translated  above) is linked below:

https://www.gesetze-im-internet.de/tmg/BJNR017910007.html

Regulatory authority

 

General supervisory authority: individual state media authorities are responsible for the enforcement of S. 5 (1) imprint obligation, and S. 6 (2) which constitutes an offence under S. 16 (1) and S. 16 (2) No. 1 TMG. List of all responsible authorities here:

http://www.jurpc.de/jurpc/show?id=20100171

AV/ broadcasting

 

The State Media Treaty Medienstaatsvertrag (MStV), in force 7 November 2020, replaces the State Broadcasting Treaty (RStV) and extends scope from principally broadcast media, into more telemedia, media platforms and media intermediaries. These include, for example, online audio and video libraries, Internet search engines, streaming providers and online social networks. (From the website of the ‘umbrella’ media authority Medienanstalten). There's a good explanation of the scope development from DLA Piper here. The treaty implements the requirements of the AVMSD, as amended by Directive 2018/1808, reflecting the ‘digitisation’ of European media regulation. The commercial communications content rules remain largely unchanged; amends from Directive 2018/1808 are here

https://www.die-medienanstalten.de/fileadmin/user_upload/Rechtsgrundlagen/Gesetze_Staatsvertraege/Medienstaatsvertrag_MStV.pdf (DE)

medienanstalten.de/fileadmin/user_upload/Rechtsgrundlagen/Richtlinien_Leitfaeden/ua_Guideline_Labelling_Advertising_Online_Media.pdf (EN)

 

The guidelines below make extensive reference to RStV, now replaced, albeit the rules are anyway largely aimed at broadcasters and related to e.g. arrangements for sponsorship and product placement 

 

TV Guidelines: Joint Directive of the German media authorities governing advertising, product placement, sponsorship and teleshopping on television in the version of 18 September 2012, Issued in accordance with Art. 46 RStV; applies solely to commercial broadcasting 

https://www.die-medienanstalten.de/fileadmin/user_upload/Rechtsgrundlagen/Richtlinien_Leitfaeden/TV_Advertising_Directive_2012.pdf (DE)

https://www.die-medienanstalten.de/fileadmin/user_upload/Rechtsgrundlagen/Richtlinien_Leitfaeden/TV_Advertising_Directive_2012.pdf (EN)

 

Radio Guidelines: Common guidelines of the State Media Authorities; covers advertising, to separate advertising from programming, and for sponsoring and teleshopping on the radio (23/02/2010); applies solely to commercial broadcasting:

http://www.g-regs.com/downloads/DERadioGuidelinesGerman.pdf

http://www.g-regs.com/downloads/DERadioGuidelinesEN.pdf

 

Protection of minors

 

Interstate Treaty on the Protection of Human Dignity and the Protection of Minors in Broadcasting and in Telemedia, known as the Interstate Treaty on the Protection of Minors (Jugendmedienschutz-Staatsvertrag JMStV): In force from September 2002. This is a state treaty between all the German federal states and establishes the legal basis for the protection of minors in electronic media. The treaty applies to broadcast and telemedia as defined in the State Media Treaty (see above); explanation of the scope development from DLA Piper here. Key for our purposes is Article 6 (EN, as amended 2020), which relates largely to commercial communications' content rules for the protection of minors, and is transposed from the AVMS Directive 2010/13/EU and its amending Directive 2018/1808. To ensure a consistent application of the Treaty, a centralised body was established in 2003, the Commission for the Protection of Minors in the Media (Kommission für Jugendmedienschutz, KJM). The State Media Authorities execute the Commission’s decisions.

English version from the State Media authorities here; not yet updated to reflect the 2020 amends to scope
 

Youth Protection Guidelines (Jugendschutzrichtlinien JuSchRiL). The Common Guidelines of State Media Authorities to ensure the protection of human dignity and the protection of minors; In force 02/06/2005. These guidelines substantiate the legal requirements of JMStV above. Article 7 is specifically referenced in Clauses 2 (5) of the State Media Authorities on TV and Radio Advertising.

https://www.kjm-online.de/fileadmin/user_upload/Rechtsgrundlagen/Richtlinien/JuschRiLi_der_Landesmedienanstalten_ab_15.10.2019.pdf (DE)

https://www.g-regs.com/downloads/DEYouthProtectionGuidelinesFig.7ENAmend2019.pdf (EN key clause only)

 

Youth Protection Act of 23 July 2002, last amended by Article 1 of the Act of April 9, 2021. Jugendschutzgesetz (JuSchG). 'The change to the German legislation, which was last reformed in 2002, is long overdue, as the old regulations are no longer up to the challenges posed by digitalization and the changed living environments of children.' From LSE blog here. Children and young people will be represented in an advisory board that will be established at the new Federal Agency for the Protection of Minors in the Media. Article 11 of the Act provides restrictions on children and young people’s viewing of films and associated advertising. In German:

https://www.gesetze-im-internet.de/juschg/BJNR273000002.html

 

Social media guidelines

 

Guideline of the Media Authorities. Labelling of advertising in online media ‘These guidelines issued by the media authorities provide assistance with thelabelling requirements for advertising on social media (Instagram, Twitter, Facebook, YouTube, TikTok, Twitch etc.) and other online media, such as blogs and podcasts. They are based solely on the advertising regulations established in the German Interstate Media Treaty (MStV) and German Telemedia Act (TMG), which serve to protect users from being misled and to make commercial content transparent. Video and audio offerings are governed by different labelling requirements compared to image/text offerings, so a distinction must be made between the two.'

https://www.die-medienanstalten.de/fileadmin/user_upload/die_medienanstalten/Service/Merkblaetter_Leitfaeden/Leitfaden_Werbekennzeichnung_Online-Medien_vers_23.pdf (DE)

https://www.die-medienanstalten.de/fileadmin/user_upload/die_medienanstalten/Service/Merkblaetter_Leitfaeden/Guideline_Labelling_Advertising_Online_Media.pdf (EN)

 

Data protection: BDSG

 

The new German Federal Data Protection Act (Bundesdatenschutzgesetz BDSG-neu). The arrival of  The General Data Protection Regulation 2016/679 , which applied directly in EU member states from 25 May 2018, repealed the Data Protection Directive 95/46/EC, which had been reflected in the BDSG. The Act to Adapt Data Protection Law to Regulation (EU) 2016/679 and to Implement Directive (EU) 2016/680 of 30 June 2017 (Gesetz zur Anpassung des Datenschutzrechts an die Verordnung (EU) 2016/679 und zur Umsetzung der Richtlinie (EU) 2016/680) recognises and ‘flanks’ the GDPR and sets out the New Federal Data Protection Act. The new BDSG includes a number of complementary provisions that cover e.g. the way in which certain public bodies handle personal data, and sets out rules on employee data protection, (though largely reflecting former rules). The new law In German:

http://www.g-regs.com/downloads/DEBDSGnew.pdf

And an official translation In English:

https://www.bmi.bund.de/SharedDocs/downloads/EN/gesetztestexte/datenschutzanpassungsumsetzungsgesetz.pdf?__blob=publicationFile&v=1

This commentary from Intersoft Consulting is thorough:

https://dsgvo-gesetz.de/bdsg-neu/

 

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. Section 25 for specifics on cookies; the TTDSG entered into force December 1, 2021.

 

 

Regulatory authorities

 

Federal Commissioner for Data Protection and Freedom of Information (Bundesbeauftragter für den Datenschutz und die Informationsfreiheit). Oversees data protection compliance within the federal public sector (Federal ministries, the Federal Employment Agency and other federal agencies, and the Federal Police) and (private) telecommunications and postal services companies. There are 16 state data protection authorities which oversee and enforce data protection compliance by private (except telecommunications and postal services) and public sector companies established in their state.

https://www.bfdi.bund.de/EN/Home/home_node.html

DSK

 

The Conference of German Data Protection Officers of the Federal Government and Federal States (DSK/ ‘Datenschutzkonferenz’ - Konferenz der Datenschutzbeauftragten des Bundes und der Länder) is an independent German advisory body on data protection and privacy. The conference is made up of the Federal Data Protection Commissioner and the Data Protection Commissioners of 16 Federal States. The DSK publishes guidelines for the GDPR, issuing 11 working papers to date; the 3rd is a guidance paper on processing personal data for marketing/ advertising purposes (see below). The DSK announced that provisions on data processing for marketing purposes in the Federal Data Protection Act will become obsolete due to the GDPR. In future, the main legal basis for data processing for marketing purposes will be consent, as provided for in Articles 6 (lawfulness of processing) and 7 (conditions for consent) of the GDPR. Guidance paper (DE) on the processing of personal data for marketing/ advertising purposes. 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 applications, the Guidance is largely devoted to the 'cookie provision' of the German Telecommunication and Telemedia Privacy Act (TTDSG), which came into force on 1 December 2021. The publication focuses on the consent requirement for cookies and similar technologies, as well as relevant exceptions, introduced by the law; full article with extracts of the DSK guidance in English here and the guidance (in German) here.

https://www.datenschutzkonferenz-online.de/

 

The Civil Code

 

German Civil Code (BGB - Bürgerliches Gesetzbuch). In the version published on 2 January 2002. Sections 312 (i) and (j) cover obligations in electronic commerce. Implements articles 10, 11 of E-Commerce Directive 2000/31/EC relating to special duties for businesses regarding the conclusion of contracts by electronic means. The Civil Code has also recently been amended to incorporate the provisions of the Consumer Rights Directive 2011/83/EC

German version: http://www.gesetze-im-internet.de/bundesrecht/bgb/gesamt.pdf

English version: http://www.gesetze-im-internet.de/englisch_bgb/

 

Freedom of advertising speech

 

The Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland –  GG). The Basic Law is the constitution of the Federal Republic of Germany. Article 5 'Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures, and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.’ guarantees freedom of speechexpression, and opinion, which right extends to advertising, seen under Art. 12 GG  occupational freedoms, whilst the content of the expression is dealt with under Art. 5.1 GG freedom of expression. Key cases the Federal Constitutional Court (BVerfG): Benetton I case (Judgment of 12 December 2000 - 1 BvR 1762/95) and Benetton II case (Decision of 11 March 2003 - 1 BvR 426/02). The decisions established that the protection afforded in Art. 5 (1) extends to commercial expressions of opinion/ statements as well as purely commercial advertising (para. 40 Benetton Case I)

https://www.gesetze-im-internet.de/gg/ (DE)

https://www.gesetze-im-internet.de/englisch_gg/index.html (EN)

 

NATIONAL SELF-REGULATION 

 

German Advertising Standards Council Deutscher Werberat; one of the two Self-Regulatory Organisations in Germany, DW deals with taste, decency and social responsibility issues via application of various codes. The Wettbewerbszentrale (see below) focuses on the statutory requirements of commercial practice. Deutscher Werberat is an institution of the 45 organisations represented by the German Advertising Federation (ZAW), which is funded by participants in the advertising market. DW is a founding member of EASA and ‘implicitly adheres’ to the ICC Code

 

DW operates a number of sector-specific codes as well as more general codes/ guidelines for commercial communications in English here; the codes are applicable to all media (except where identified), including online per this statement in 2011 DE / EN. Below is a selection:

 

  • Basic principles on commercial communications (Oct 2007) EN / DE
  • Code against personal denigration and discrimination July 2014 EN / DE
  • Advertising with celebrities; announcement of the German Advertising Council EN / DE
  • Children and adolescents EN / DE
  • DW Flyer on Denigration and Discrimination EN / DE

WBZ

 

Central Office for Protection against unfair competition (Wettbewerbszentrale - WBZ). The Wettbewerbszentrale - in full the Zentrale zur Bekämpfung unlauteren Wettbewerbs, English Information here - is a trade association that enforces statutory law if competition rules are infringed. It is responsible for issues of misleading advertising and unfair competition. In essence, it applies the law as opposed to a Self-Regulatory code, as in the case of Deutscher Werberat; the WBZ is judicially authorised to initiate legal action against those who infringe laws on unfair competition under article 8 (3) (2) UWG and also Art. 33 (4.1) Law against Restraints on Competition

 

Guidance documents

  • Overview of Direct Marketing EN / DE
  • Overview of e-Commerce DE
  • Overview privacy/ online marketing DE
  • Influencer marketing DE

DDOW

 

DDOW: German Data Protection Council for Online AdvertisingDeutsche Datenschutzrat Online-Werbung (DDOW). The Self-Regulatory body of the digital advertising industry for OBA in Germany, in the wake of the IAB Europe/ EDAA Framework on OBA and in line with similar initiatives in other European countries, as well as a broader data protection remit. The DDOW is under the auspices of ZAW:

https://zaw.de/selbstregulierung/deutscher-datenschutzrat-online-werbung-ddow/

 

DDV

 

DDV, German Dialogue Marketing Association Deutscher Dialogmarketing Verband. The DDV represents the interests of service providers and advertisers throughout the direct marketing industry. It operates through its various councils (now known as competence centres) who draft the various codes. These are not binding for non-members of the association, and often go beyond the statutory provisions. The relevant ethical codes can be found here under the Quality assurance section of the DDV website:

https://www.ddv.de/verband/qualitaet/ehrenkodizes.html   

 

Opt-out registers/ Robinson list

 

DDV Robinson List. Founded in 1971 by the Deutscher Dialogmarketing Verband e. V. (DDV), German Dialogue Marketing Association, as a voluntary institution of the advertising industry. Non-member companies can purchase the DDV Robinson list and download latest file from the Internet. As an alternative to the DDV Robinson list, a combination Robinson list DDV / IDI (advertising refusal post mailings) is available. Brochure (In German) for companies:

https://www.ddv.de/fileadmin/user_upload/pdf/Branche/DDV-Flyer_Robinsonliste.pdf

 
INTERNATIONAL CODES AND GUIDANCE 
 
ICC
 
ICC Advertising and Marketing Communications Code 2018:
 
Chapter A: Sales Promotion
Chapter B : Sponsorship
Chapter C: Direct Marketing and Digital Marketing Communications
Chapter D: Environmental Claims in Marketing Communications
Additional ICC guidance and frameworks 
(non-exhaustive)
 
The ICC Framework for Responsible Environmental Marketing Communications 2021. 'The updated 2021 Environmental Framework provides added guidance on some established environmental claims and additional guidance on some emerging claims' and 'a summary of the principles of the ICC Code including those outlined in Chapter D on environmental claims and supplements them with additional commentary and guidance to aid practitioners in applying the principles to environmental advertising.' Appendix I carries an Environmental Claims Checklist 'that marketers may find useful in evaluating their environmental claims.' 
http://www.g-regs.com/downloads/iccenvironmentalframework_2021.pdf
ICC Resource Guide for Self-Regulation of Online Behavioural Advertising: It’s a ‘Resource Guide’, rather than rules per se, showing: explanation of global framework available for OBA self-regulation, checklist from existing OBA self-regulatory mechanisms on how to implement the global principles and links to further resources. The ICC's OBA rules are under C22 of their General Code; we have extracted the rules here
Mobile Supplement to the ICC Resource Guide for Self-Regulation of Interest-based Advertising 
ICC Guide for Responsible Mobile Marketing Communications
The ICC’s Guidance on Native Advertising:

 

EASA

 

The European Advertising Standards Alliance is a non-profit organisation based in Brussels; it brings together national advertising self-regulatory organisations (SROs, such as the ARPP) and other organisations representing the advertising industry in Europe and beyond. EASA is "the European voice for advertising self-regulation". The following link provides access to alliance membership:

http://www.easa-alliance.org/members

 

EASA’s Best Practice recommendations 

 

Digital Marketing Communications (2023)

Online Behavioural Advertising (2021)

Influencer Marketing (2023)

 

IAB Germany/ Europe

 

The Bundesverband Digitale Wirtschaft (BVDW) e.V. (from their website) 'is the organisation that represents the interests of companies in the field of interactive marketing, digital content and interactive added value. Within the BVDW the OVK (Online-Vermarkterkreis or Circle of Online Marketers) is the central body of online marketers in Germany. Nineteen of the largest German online marketers have come together to raise the profile of online advertising.'

https://www.bvdw.org/ or

https://www.iabeurope.eu/directory-member/bvdw-iab-germany/

How to Comply with EU Rules Applicable to Online Native Advertising
IAB Europe Transparency and Consent Framework: 

 

WFA

 

The ‘GDPR Guide for Marketers’ from the WFA (World Federation of Advertisers)

http://info.wfa.be/WFA-GDPR-guide-for-marketers.pdf

The WFA launched their Planet Pledge in April 2021

And Global Guidance on Environmental Claims April 2022

 

ESA

 

The European Sponsorship Association is here:

www.sponsorship.org

 

EU GUIDANCE

 

Environmental claims

 

Guidance on the interpretation and application of Directive 2005/29/EC of the European Parliament and of the Council concerning unfair business-to-consumer commercial practices in the internal market. December 2021. The purpose of this document is to facilitate the proper application of Directive 2005/29/EC on unfair business-to-consumer commercial practices. It provides guidance on the UCPD’s key concepts and provisions and examples taken from the case law of the Court of Justice of the European Union, and from national courts and administrations. A specific section on the application of the UCPD to environmental claims is under Section 4.1

https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52021XC1229(05)

 

 

 

 

 

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