Updates since March 2023 (slimmed)
Wettbewerbszentrale and new UWG rules (DE)
Influencer marketing: enforcement time
Reed Smith LLP/ Lex March 6, 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
Green transition Directive enacted (DE)
DLA Piper/ FOR March 24, 2024
Corporate Influencers (DE) Schwarz Apr 29, 2024
Taylor Wessing re test results (DE) June 5, 2024
Generative AI/ GDPR/ EDPS (DE) Noerr June 5
ECJ Biocides & 'skin-friendly' (DE) June 20, 2024
DW links refreshed July 27, 2024
New case law on advertising online reviews (EN)
Reed Smith LLP/ Lex August 7, 2024
Bardehle Pagenberg on the 'climate neutral' case
DLA Piper Environmental Advertising Claims Guide
Above from August 7, 2024 includes Germany
The German govt draft CSRD implementation act
Squire Patton Boggs August 19, 2024
Consent Management Ordinance Heuking Sept 24, 2024
Federal Court of Justice and 'climate neutral' (DE)
From Sustainable Views EN commentary June 28, 2024
Wettbewerbszentrale, who brought the action, here (DE)
DDG lays the foundation for the EU DSA in Germany
Taylor Wessing May 14, 2024 (EN)
Auf Wiedersehen Werbung mit Klimaneutralität? Taylor Wessing Feb 9, 2024
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
Federal Court of Justice and 'climate neutral' (DE)
From Sustainable Views EN commentary June 28, 2024
ESG emphasis questions preferential treatment of sustainability deals (EN)
Global Competition Review June 7, 2024
Courts disagree on 'climate-neutral' (DE)
Heuking Kühn Lüer Wojtek July 19, 2023
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.
Internationally, the WFA launched their Planet Pledge in April 2021 and Global Guidance on Environmental Claims April 2022; Green Trademarks vs. Green Claims Directive - Droht „Klimamarken“ die Löschung? (DE) SKW Schwarz july 25, 2024 covers the EU ground, focusing on green trademarks/ certification. DLA Piper's August 2024 Environmental Advertising Claims Guide covers all key markets including Germany.
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' (DE / EN) 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
Consent Management Ordinance Heuking Sept 24, 2024
Changes To The BDSG And TTDSG. Heuking June 27, 2024
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
Changes To The BDSG And TTDSG. Heuking June 27, 2024
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.
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
LEGISLATION
2.1. Law against unfair competition
2.2. Broadcast/ AV rules
ENVIRONMENTAL CLAIMS
3.1. The ICC Framework for responsible environmental marketing communications
3.2. UCPD and UWG application to environmental claims
PRICING IN ADVERTISING
- Cae law and guidance
‘SHOCK’ ADVERTISING
1. SELF-REGULATION
1.1 Deutscher Werberat general principles on commercial communications EN / DE
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:
1.3 DW’s Advertising with celebrities EN / DE
Legislation on advertising with politicians and celebrities
Human dignity
The right to one’s own name
1.4 ICC Advertising and Marketing Communications Code
Article 2. Social responsibility
Article 5. Truthfulness
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
Section 5 Misleading Commercial Practices (B2C and B2B)
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.
5b. Material information
Section 6. Comparative advertising
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
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
3. ENVIRONMENTAL CLAIMS
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
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
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
Other provisions in UWG also applicable to price indication in an advertisement
Guidance and case law
Commission guidance on the application of article 6a of Directive 98/6/EC on consumer protection in the indication of the prices of products offered to consumers (2021)
Legislation (2)
Price Indication Ordinance PAngV DE
See reference to amends in the final para of this section
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
Federal Constitutional Court cases:
APPLICABLE LEGISLATION AND GUIDELINES
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
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
State Media Treaty, article 10, applicable to public service and commercial broadcasting
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
The rules from our earlier content section B apply to print advertising, except where those are specific to broadcast or to online
Self-regulation
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
OUTDOOR
Online Marketing and the Digital Services Act (EN) from Heuking/ 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
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
GUIDELINES
SOCIAL MEDIA: INFLUENCER MARKETING
AD MARKERS/ IDENTIFIERS: HASHTAGS FOR SOCIAL MEDIA
“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%”
RECOMMENDATIONS/ REFERRALS
OLG Hamm, decision dated 10.9.2013, 4 U 48/13, Para. 108
RELATED CASE
Privacy issues should be reviewed with specialist advisors
Consent Management Ordinance Heuking Sept 24, 2024
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 Covington & Burling Aug 2022 on existing targeted ad rules & DSA impact
Online Marketing and the Digital Services Act (EN) from Heuking/ 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)
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
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:
OBA
Online Marketing and the Digital Services Act (EN) from Heuking/ 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
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
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
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
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
Existing customer relationships; ‘soft opt-In’
INFORMATION OBLIGATIONS
THE IMPRINT
Tell-a-friend case
Privacy issues should be reviewed with specialist advisors
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
KEY RULES
THE IMPRINT
INFORMATION REQUIREMENTS
VLOGGING/ BLOGGING (extracts only)
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
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
Case law
APPLICABLE SELF-REGULATION
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
Following feedback, we no longer cover Telemarketing
OVERVIEW
Privacy issues should be reviewed with specialist advisors
APPLICABLE LEGISLATION AND SELF-REGULATION
A. Legislation
B. Self-regulation and guidance
B1. ICC Advertising and Marketing Communications Code (EN). Chapter C Direct Marketing
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
C. Guidance/ case law
Principle of opt-out consent; see WBZ Review EN
Case examples related to the above are shown in the linked document here:
http://www.g-regs.com/downloads/DEGenDMcaseexamples.pdf
Billion-dollar European Football: What is/ not allowed in advertising
Taylor Wessing May 30, 2024 (DE; video)
Ambush marketing: the European summer of sport
Taylor Wessing May 16, 2024
GUIDE: The Olympic Games 2024 - Beating around le ambush
Lewis Silkin 25 January, 2024
CONTENT RULES
B1. Principles governing sponsorship
B2. Autonomy and self-determination
B3. Imitation and confusion
B4. Ambushing of sponsored properties
B5. Respect for the sponsorship property and the sponsor
B6. The sponsorship audience
B7. Data capture/ data sharing
B8. Artistic and historical objects
B9. Social and environmental sponsorship
B10. Charities and humanitarian sponsorship
B11. Multiple sponsorship
B12. Media sponsorship
B13. Responsibility
.....................................................
The European Sponsorship Association (ESA) may also be able to help/ inform
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
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)
Other provisions in UWG also applicable to price indication in an advertisement
Games and prizes
Offers and conditions
2. KEY CLAUSES SELF-REGULATION
The ICC Advertising and Marketing Communications Code (EN), Chapter A extracts :
Article A2. Terms of the offer
Article A4. Administration of promotions
Article A6. Presentation to consumers
Information requirements
Information should include, where relevant:
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:
ADVICE AND CLEARANCE
The German self-regulatory system has two organisations:
COMPLAINTS HANDLING
COPY ADVICE
Website:
https://www.wettbewerbszentrale.de/de/home/
Information in English:
https://www.wettbewerbszentrale.de/de/informationenglfranz/engl/
COMPLAINTS HANDLING
COPY ADVICE
CLEARANCE
Direct to broadcaster
Allow 3-5 days TV/VOD
For help contact the Traffic Bureau administration@trafficbureau.net
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:
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:
Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR. Adopted on 12 March 2019
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:
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
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
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)
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
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.
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
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.
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.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.'
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:
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.
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 speech, expression, 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)
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:
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
DDOW
DDOW: German Data Protection Council for Online Advertising. Deutsche 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
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.iabeurope.eu/directory-member/bvdw-iab-germany/
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:
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)