Comparative

 

Uploaded May/June 2020.

See individual countries for updates.

Germany

A. Overview

Sector

SECTION A

 

First draft June 2020

 

 

THE CORE LAW 

 

The comparative advertising rules in Germany are from the same source as all other member states’, but delivered slightly differently and into a different regulatory environment. The Misleading and Comparative Advertising Directive 2006/114/EC and the Unfair Commercial Practices Directive 2005/29/EC are the ‘foundations’ of comparative advertising rules in Europe. They are delivered in Germany into a single and highly influential Unfair Competition Act, the Gesetz gegen den unlauteren Wettbewerb or UWG. (The link takes you to the document in German; in the same link is an English translation.)  Other national legislation related to Comparative advertising is the Law for the implementation of Directive 2015/2436, the latter of which - here - recast Trademark Directive 2008/95/EC. We don't, however, cover trademark law, except where it 'connects with' comparative advertising rules in some of the case notes below. 

 

 

THE KEY RULES 

 

Section 6 UWG. Comparative advertising

 

(1) Comparative advertising shall mean any advertising which explicitly or by implication identifies a competitor, or goods or services offered by a competitor; case note here 

(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; case note here Case FCJ, judgment dated 15.10.1998 - I ZR 69/96, MDR 1999, 820 - GRUR Int. 1999, 453/4 - Vergleichen Sie. Comparison relating to goods that meet the same needs or are intended for the same purpose means that they are 'substitutable products' https://www.mondaq.com/germany/10090/comparative-advertising-the-new-law
  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; case note here 
  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; case note here 
  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. Case note here

 

 

CONTEXT

 

  • Unlike other member states, the key clause and lead rule in the 2006/114/EC Directive article 4a (Comparative advertising shall, as far as the comparison is concerned, be permitted when the following conditions are met: (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), has not been transposed per se. The ‘lead’ rule in Section 6 of the UWG is not that Comparative advertising must not mislead
  • The misleadingness clauses in the UWG, however, incorporate some comparative elements. The construction of the transposition of the Directive is explained in a separate note here and compared to another country (Italy) here, and the UWG misleadingness clauses are spelt out in our Content Section B, or see the linked document, Sections 5, 5a and 6.
 

 

SELF-REGULATION IN GERMANY

 

The German Self-Regulatory system has two advertising standards organisations. Deutscher Werberat deals with issues of taste, decency, and social responsibility, whereas the Wettbewerbszentrale (WBZ; the Centre for Protection against Unfair Competition) handles issues of unfair commercial practices by applying unfair competition law. WBZ handles complaints from consumers, competitors and other interested parties, details of their role here (EN). Its activities are based on its authority to take legal action as an association under § 8 (3) No. 2 of the UWG. The mechanisms for action against perceived breaches are therefore more established than in some other markets, where the alternatives are the (single) ‘regular’ Self-Regulatory Organisation, or the law. The ‘base’ codes shown below under general rules do not include Comparative advertising clauses; as indicated earlier, issues around Comparative advertising would likely be dealt with by the WBZ.

 

 

CHANNEL RULES 

 

By ‘Channel rules’ we mean the rules for placement of advertising – for example, Consent and Information requirements in digital channels, product placement and sponsorship rules in broadcast. There are no channel rules specific to Comparative advertising. The Content rules shown referenced in this section and set out in Content Section B apply across all channels. The following Channel Section C points out some issues for Comparative advertising by channel, and under the General tab in that section shows all the General channel rules, which apply to Comparative advertising, as they apply to all sectors.

 

 

GENERAL RULES 

 

It’s important that the rules for all forms of advertising, Comparative included, shown in full below under the General tab, are also understood; adjudications against Comparative advertising, as well as subject to misleadingness rules, should also respect taste and decency requirements, for example. The principal source of rules for all advertising content is the German Advertising Standards Council Deutscher Werberat (DW) - codes of conduct here EN / DE. 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 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

 

 

 

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General

SECTION A OVERVIEW

 

Updates

AVMSD amends May 2020

Social media flyer June 2020

UWG and RStV update June 2020

EDPB updates Aug 2020

MStV JMStV and TMG amends Nov 2020

Directive 2019/2161 added Section E Jan 2021

New Influencer draft law Feb 2021

New TTDSG draft bill (cookie rules) April 2021

Above agreed 28/5/21; in force Dec 1 2021

Flyer 'Labelling online advertising' June 2021

FCJ Influencer decision September 2021

TTDSG October 2021, in force Dec 2021

Google's enviromental claims policy Oct 2021

UWG amend (DE) August 2021

Pricing Ordinance amend (DE) Nov 2021

ICC Environmental framework 2021 (Nov)

 

 

These are the marcoms rules that apply to all product categories. Specific rules for regulation-sensitive sectors such as Alcohol, Cars, Children etc. are separately available; see main website. The Overview below covers the key points. See Content Section B and Channel Section C for full information. Text for each country that we cover is generally reviewed by the relevant Self-Regulatory Organisation (SRO); Germany is the sole exception.

 

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 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 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 

 

There’s 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 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 applicable German version 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 in this context. 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) 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 significant article from DLA Piper via Lexology, Misleading advertising practices in Germany (EN), sets out the rules.

 

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 comes into force on May 28, 2022 and hopefully we will see an 'official' translation before then.

 

ENVIRONMENTAL CLAIMS

 

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, EU Commission Guidance is obviously relevant: we have extracted Section 5.1 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). An interesting article from CMS Germany via Lexology Sustainability, Advertising and Greenwashing discusses some of the broader claims and their legal compliance. The WFA launched their Planet Pledge in April 2021. On 7 October 2021, Google launched a new monetization policy for Google advertisers, publishers and YouTube creators that will prohibit ads for, and monetization of, content that contradicts well-established scientific consensus around the existence and causes of climate change. 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/ Lexology August 2021 is more specific to advertising.

 

 

Influencer marketing

 

From the EASA policy newsletter of July 2019: ‘The German Ministry of Justice has announced plans (DE) for regulation providing clarity on this issue.’ This follows a high profile case involving Cathy Hummels, who won an action brought by The Social Advertising Association (VSW), which had complained about posts on Hummels' Instagram account that were not marked as advertising. The case is interesting because the prosecution argued that, paid or not, the featuring of products in this context is ‘advertising’ and should therefore be marked. Hummels argued successfully that magazines don’t have to do that. 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 recent significant development is the June 2021 flyer Labelling of advertising in online media (DEEN) from the State Media Authorities. 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/ Lexology. This November 2021 article from the World Trademark Review also via Lexology covers similar ground and refers to the UWG amendment referenced above. 

 

 

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. The Telemedia act referenced below also receives some of the Directive's amends.

 

 

Online privacy and information

 

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, 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 Rechtsanwälte/ Lexology October 2021 is helpful explanation.

 

The Telemedia Act TMG DE / EN (key clauses) under section 6 delivers the marcoms-related clauses from the E-commerce Directive 2000/31/EC. The TTDSG above 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. 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). 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 the 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 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, coming into force May 28, 2022.

 

 

 

 

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International

SECTION A OVERVIEW

 

Updates
Uploaded Oct 2018
AVMS amends March 2020
EDPB amends Oct 2020
WFA Planet Pledge April 2021
Diversity etc. June 2021

The EU Pledge, enhanced July 2021 

IAB Europe Guide to Contextual Advertising July 2021

EASA Cross Border complaints Sept 2021

WHO Alcohol consultation October 2021

CJEU judgement November 2021

 
 

SOME INTERNATIONAL NEWS

 

 

 

Alcohol. October 2021

 

Advertisers/ agencies should be aware of two significant influences on the horizon that may have an impact on regulation of their business/ advertising. In the context of Europe’s ‘Beating Cancer Action Plan’, there will likely be some impact on self-regulation of alcohol advertising. The second influence is the WHO consultation on the first draft of the Global Alcohol Action Plan 2022-2030. The action plan will be considered by the 75th World Health Assembly through the Executive Board in 2022. The board has requested of the Director General 'to develop a technical report on the harmful use of alcohol related to cross-border alcohol marketing, advertising and promotional activities, including targeting youth and adolescents, before the 150th session of the WHO Executive Board, which could contribute to the development of the action plan.'  ICAS has highlighted in its submission the econometric and social benefits that effective and meaningful advertising self-regulation can have at national level.

 

Cookies September 27, 2021

 

EDPB establishes cookie banner taskforce

 

X-border complaints. September 2021

 

EASA's latest Cross-Border Complaints Report is out; In 2020, the network handled 337 cross-border complaints. The full report is available here

 
EC developments  

 

The Digital Services Act package

EASA's September 2021 update on the DSA here 

And on the Better Internet for Children Strategy (BIK strategy) here

And on environmental claims and the new consumer agenda here

 EU pages on the Farm to Fork strategy here

 This from the EDAA is a helpful and simple explanation of the DSA

The EU’s Green Consumption Pledge Initiative focuses on 'non-food or mixed businesses with direct interaction with consumers'

 And complements the EU Code of Conduct for Responsible Food Business and Marketing Practices, in force July 2021 

 

Not from the EC

 

IAB Europe on 16 September published ‘The Wider Socio-Economic & Cultural Value of Targeted Advertising In Europe’ 

'Diversity, equity and inclusion in global campaigns' from Frankfurt Kurnit Klein & Selz PC March 31, 2021

WFA launched 'Planet Pledge' in April 2021, 'a CMO-led framework designed to galvanise action from marketers within our membership to promote and reinforce attitudes and behaviours which will help the world meet the challenges laid out in the UN sustainable development goals.'

Promoting diversity and inclusion in advertising: a UNICEF playbook published July 2021

 

 

1. SELF-REGULATION
1.1 The ICC Code
 
This 'International' sector provides largely Self-Regulatory rules that apply across several jurisdictions/ countries, so the content is the same under each country and product sector. For the time being, we are largely interpreting 'International' as Europe, though as the service expands, so will this section. The rules are primarily from the ICC, the International Chamber of Commerce, whose Advertising and Marketing Communications Code ('the Code'), the most recent version of which was announced in September 2018, underpins much of Self-Regulation worldwide.
 
Most countries feature national advertising Self-Regulatory codes which draw their main principles from the ICC Code, whilst a number of countries apply its provisions directlly - Belgium, Finland and Sweden, for example - so it can be regarded as a solid reflection of the regulatory picture across Europe and beyond. It would be very unlikely that any ICC rule would significantly differ from a specific country or sector clause addressing the same issue, but the latter may have more nuance or cultural context and will, of course, prevail as the principal source of regulation. So you can use these ICC rules in two ways: as a sound 'first pass' if you want a general picture of what you can or can't say across a number of countries, or as a surrogate for, and access to, countries that we don't currently cover and where rules may be inaccessible. The ICC provide a 'gateway' to Codes around the world, as do ICAS, the International Council for Advertising Self-Regulation.
 
 
1.2 Guidance and EASA
 
Where the ICC is the principal source for 'umbrella' rules, another important source, in this case of Advice and Good Practice, is EASA, the European Advertising Standards Alliance, which describes itself as the 'single authoritative voice on advertising self-regulation issues in Europe'. EASA's Best Practice Recommendations (BPRs) are valuable guidance on, for example, the distinction between Paid and Unpaid communications. These documents are placed and linked in relevant channels within the text in each country.
 
 
1.3 Structure and scope of the ICC Code

 

The Code is structured in two main sections: General Provisions and Chapters. General Provisions set out fundamental principles and other broad concepts that apply to all marketing in all media. Code Chapters apply to specific marketing areas, including Sales Promotions (A), Sponsorship (B), Direct Marketing and Digital Marketing Communications (C), and Environmental Claims in Marketing Communications (D). The Code 'should also be read in conjunction with other current ICC codes, principles and framework interpretations in the area of marketing and advertising':


ICC Guide for Responsible Mobile Marketing Communications

Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications

ICC Framework for Responsible Food and Beverage Marketing Communication

ICC International Code of Direct Selling

 

All the individual rules themselves are set out  in the following Content Section B and Channel Section C.

 

 
1.4 Sector and channel rules 

 

The rules are both 'horizontal', i.e. they apply across product sectors, and the ICC also publish 'vertical' sector-specific framework rules such as those for Alcohol, or Food and Beverages (as linked above). While these rules are referenced in the sections that follow, we don't extract them in full as these product sectors are covered by specific databases on this website. These sector rules in particular need to be read with a) the general rules that apply to all product sectors and b) the specific legislation and Self-Regulation that frequently surrounds regulation-sensitive sectors. Channel rules from the iCC Code, such as those for OBA, are shown within the relevant sub-heads under our Channel Section C, together with the applicable European legislation.

 

 
2. THE LAW
European Regulations and Directives

 

 
We draw extensively on European Directives and their national implementation in the Sector and General rules shown elsewhere on this website. In this international context, we show only the most immediately relevant Directives and a brief extract of their rules, together with links to EU Regulations which apply directly in member states. It should not be assumed that Directives are always implemented to the letter, but providing them together in one place at least allows a broad understanding of the influences of European legislation. EU Regulations are significant in the Food sector of those we cover currently, for example, and it's important at least to be aware of them, albeit rules are reflected in the Self-Regulatory measures that remain the most important influence in advertising regulation in Europe and elsewhere.

 

The issue with European rules is that it can be difficult to understand which regulation applies to which marketing technique or process, especially as some Directives apply to several marketing tools. The table below provides an overview; the marcoms-relevant rules are set out in Content Section B and Channel Section C, as applicable.
 
 
European Directives in marketing

 

Issue or Channel Key European legislation and clause
Cookies
The EU ‘Cookies Directive’ 2009/136/EC:
articles 5 and 7, which amended the E-Privacy Directive 2002/58/EC:
Electronic coms. Consent and Information 
Directive 2002/58/EC on privacy and electronic communications:
Articles 5 (3) and 13 
E-commerce; related electronic communications
Directive on electronic commerce 2000/31/EC of 8 June 2000 on certain legal aspects of information society services: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0031:en:HTML
Articles 5 and 6
Marketing Communications
Directive 2005/29/EC on unfair business-to-consumer commercial practices 
Articles 6, 7, 14 (amendments re comparative advertising), Annex I
Audiovisual media 

Directive 2010/13/EU concerning the provision of audiovisual media services (Audiovisual Media Services Directive; consolidated version)
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02010L0013-20181218

Amended by Directive 2018/1808, which extended some rules into the digital landscape and especially video-sharing platforms 

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

 

 

Sections B and C below sets out the rules that are relevant to marketing communications from the Directives above, together with the Self-Regulatory measures referenced under Point 1 in this overview.

 

 

 

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B. Content Rules

Sector

SECTION B

 

 

1. LEGISLATION

 

1.1.UWG Section 6

1.2. UWG Sections 5 and 5a

1.3. Case Law

 

2. SELF-REGULATION

 

2.1. The WBZ

2.2. Deutscher Werberat

2.3. The ICC

 

 

1. LEGISLATION

 

  • The Gesetz gegen den unlauteren Wettbewerb or UWG (link will take you to the German original together with an English translation) is the Unfair Competition Act, advertising’s most important law, as it implements both the Unfair Commercial Practices Directive UCPD 2005/29/EC and Directive 2006/114/EC on Misleading and Comparative Advertising (MACAD)
  • The Section 6 that we show immediately below is the transposition from MACAD; the Section is ‘connected’ to the misleadingness clauses under Section 5, which we show below under 1.2. The nuances of the transposition are shown in a note here

 

Section 6 UWG. Comparative advertising

 

(1) Comparative advertising shall mean any advertising which explicitly or by implication identifies a competitor, or goods or services offered by a competitor; case note here

(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; Case note:  FCJ, judgment dated 15.10.1998 - I ZR 69/96, MDR 1999, 820 - GRUR Int. 1999, 453/4 - Vergleichen Sie. Comparison relating to goods that meet the same needs or are intended for the same purpose means that they are 'substitutable products'. Case here (EN)
  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; case note here 
  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; case note here 
  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. Case note here

 

 

1.2. UWG Section 5 and 5a

 

Section 5

Misleading commercial practices

 

(1) Unfairness shall have occurred where a person engages in a misleading commercial practice which is suited to causing the consumer or other market participant to take a transactional decision which he would not have taken otherwise. A commercial practice shall be regarded as misleading if it contains false statements or other information suited to deception regarding the following circumstances:

 

  1. The main 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

 

(2) A commercial practice shall also be regarded as misleading if in connection with the marketing of goods or services, including comparative advertising (emphasis ours), it creates a risk of confusion with other goods or services or with the trade mark or other distinguishing mark of a competitor.

(3) Information within the meaning of subsection (1) sentence 2 shall also be regarded as including information which forms part of comparative advertising (emphasis ours), as well as pictorial illustrations and other events which are targeted at, and are suitable for, taking the place of such information.

(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. 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 with the price reduction.

 

 

Section 5a
Misleading by omission

 

 (1) In assessing whether the concealment of a fact is misleading, consideration shall, in particular, be given to its significance for the transactional decision according to prevailing public opinion, as well as to the suitability of the concealment for influencing the decision

(2) Unfairness shall have occurred where a person, in a factual context and taking account of all the features and circumstances, omits material information

 

  1. Which the consumer needs, according to the context, to take an informed transactional decision and
  2. Whose omission is suited to causing the consumer to make a transactional decision which he would not have taken otherwise

 

The following shall also be regarded as an omission of information

 

  1. The hiding of material information
  2.  The provision of material information in an unclear, unintelligible or ambiguous manner
  3. The provision of material information in an untimely manner

 

(3) 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 regarded as 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 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
  4. Arrangements for payment, delivery and performance, as well as complaint handling policies so far as they depart from the requirements of professional diligence; and
  5. The existence of a right of withdrawal or cancellation

 

(4) Such information shall also be regarded as material within the meaning of subsection (2) as shall not be omitted in respect of consumers by virtue of EU Regulations or pursuant to legal provisions for the implementation of EU Directives for commercial communication, including advertising or marketing

(5) When deciding whether information has been omitted, account shall be taken of

 

  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 referred to in no. 1.

 

(6) Unfairness shall also have occurred where the commercial intent of a commercial practice is not identified, unless this is directly apparent from the context, and where such failure to identify the commercial intent is suited to causing the consumer to take a transactional decision which he would not have taken otherwise

 

 

2. SELF-REGULATION AND GENERAL RULES

 

2.1. The WBZ

 

  • Wettbewerbszentrale (WBZ), literally the Competition Centre, ‘is the largest and most influential self-regulatory institution operating nationwide and across borders to enforce the law against unfair competition.’ (From their website). it is ‘a self-regulatory institution of the entire economy with the task of protecting competition in the public interest.’ Brochure on their role in English here
  • WBZ is statutorily authorised under Section 8 (3) No. 2 UWG, the Law Against Unfair Competition) and Section 33 (2) GWB (Law Against Restrictions on Competition). Any member of the public (competitor or consumer) can submit a complaint to WBZ
  • The news link provides some recent Comparative advertising cases. (It’s in German, as you might expect, but the translation facility provides the gist). A recent case of interest is here (DE). The judgement found that a price comparison website constituted comparative advertising and breached section 6 (2) No.2 UWG The clause Unfairness shall have occurred when the comparison...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. The site, which offered comparisons of insurance products, included various features of the plaintiff’s product, but not the price (the company concerned does not work with the defendant), and price was ‘in the foreground’ of the comparison site

 

2.2. Deutscher Werberat (DW)

 

  • From their website: ‘Commercial advertising in Germany is comprehensively regulated by law. The state provides a framework for fair competition and ensures that advertising freedom is not used to the detriment of the public interest – for example by banning advertising claims that mislead, constitute a nuisance or are harmful to minors.
  •  In addition to this statutory regulation, advertisers, the media and advertising agencies themselves actively exercise responsibility for ensuring good standards in advertising. The aim is for the public to have a means of recourse in instances where print, screen or billboard advertisements prompt criticism but do not actually break the law. This purpose is served by Deutscher Werberat – the German Advertising Standards Council. Deutscher Werberat does this in two ways: Firstly, it provides a mechanism for conflict settlement between the public and commercial advertisers. Secondly, it draws up voluntary codes of conduct for advertising, particularly with regard to sensitive areas.
  • The DW does not include specific comparative advertising rules in their codes: as indicated above, that’s the roles of legislation/ WBZ, but It’s important that the rules for all forms of advertising, shown in full below under the General tab, are also understood; adjudications against Comparative advertising, should also respect taste and decency requirements, for example. 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 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

 

 

Denigration and discrimination

 

A significant addition in June 2019 to DW rules, related to the Code linked above, is in the form of a guidance ‘flyer’. Using 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 applicable German version is here and our translation is here

 

2.3.The ICC Code 

 

  • 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 in this context.

 

Comparative advertising

 

The clauses immediately below are those from the ICC Code that directly relate to comparative advertising. Per the structure under Point 1 Legislation, we then attach clauses relating to Misleadingness, but don’t set them out as, in this context, they're not as important as the legislation above under 1.2.

 

  • 11. Comparisons Marketing communications containing comparisons should be so designed that the comparison is not likely to mislead, and should comply with the principles of fair competition. Points of comparison should be based on facts which can be substantiated and should not be unfairly selected
  • 12. Denigration Marketing communications should not denigrate any person or group of persons, firm, organisation, industrial or commercial activity, profession or product, or seek to bring it or them into public contempt or ridicule
  • 15. Exploitation of goodwill Marketing communications should not make unjustifiable use of the name, initials, logo and/or trademarks of another firm, company or institution. Marketing communications should not in any way take undue advantage of another firm’s, individual’s or institution’s goodwill in its name, brands or other intellectual property, or take advantage of the goodwill earned by other marketing campaigns without prior consent
  • 16. Imitation Marketing communications should not imitate those of another marketer in any way likely to mislead or confuse the consumer, for example through the general layout, text, slogan, visual treatment, music or sound effects. Where a marketer has established a distinctive marketing communications campaign in one or more countries, other marketers should not imitate that campaign in other countries where the marketer who originated the campaign may operate, thereby preventing the extension of the campaign to those countries within a reasonable period of time

 

 

The ICC Code misleadingness clauses are here

 

 

 

...................................................................................

General

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

 
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. The amends are set out in English here. They are not yet incorporated below as they are not yet in force, but clauses can be found in the linked file.

 

  • 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 the clauses that most directly relate to marketing communications/ advertising 

 

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. 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 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. 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
  3. 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. In assessing whether the withholding of a fact is misleading, consideration shall be given in particular to its significance for the transactional decision according to prevailing public opinion, as well as to the suitability of the withholding for influencing the decision.
  2. Anyone is deemed to be acting unfairly who, taking into account all the circumstances of the particular case, omits material information from the consumer:

 

  1. Which the consumer needs, according to the context, to take an informed transactional decision, and
  2. Whose omission is likely to cause the consumer to take a transactional decision that he/she would not have taken otherwise

 

The following actions shall also be regarded as an omission of information:

 

  • The hiding/ concealment of material information
  • The provision of material information in an unclear, unintelligible, or ambiguous manner
  • The provision of material information in an untimely manner

 

 

Invitation to Purchase

 

  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

 

 

Surreptitious/ hidden advertising/ failure to identify commercial intent

 

  1. Unfairness shall also have occurred where the commercial intent of a commercial practice is not identified, unless this is directly apparent from the context, and where such failure to identify the commercial intent is suited to causing the consumer to take a transactional decision which he would not have taken otherwise

 

 

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

 

 

EU guidance

 

EU Commission guidance on the application of Directive 2005/29/EC on Unfair Commercial Practices EN, section 5.1 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

 

  • WBZ (Centre for Protection against Unfair Competition) Cars Review contains a section on price advertising EN / DE; the German version includes a recent case Citroën Commerce C-476/14, also referenced below
  • Court of Justice of the European Union (CJEU): C‑476/14 (Citroën/ZLW) Judgement and AG Opinion; CJEU ruled that delivery/ transfer costs had to be included in the stated selling price

 

 

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 amendments 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

 

 
.....................................................................

International

SECTION B CONTENT RULES

 

 

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

 

 

  1. SELF-REGULATION; the ICC Code
     

1.1. General provisions

Includes key legislation and ICC framework
Includes key legislation and ICC framework
 
  1. THE LAW 


2.1. General provisions from the Unfair Commercial Practices Directive  (UCPD)
2.2 Specific pricing measures 
2.2.1. Directive 98/6/EC - the Product Price Directive
2.2.2. Extracts from UCPD

2.2.3. Extracts from the ICC Code related to pricing

2.2.4. The AVMS Directive 


 

1. SELF-REGULATION; THE ICC CODE

 

1.1 General provisions 

 

Basic principles (Art. 1)

 

  • All marketing communications should be legal, decent, honest and truthful
  • All marketing communications should be prepared with a due sense of social and professional responsibility and should conform to the principles of fair competition, as generally accepted in business
  • No communication should be such as to impair public confidence in marketing

 

Social responsibility (Art. 2)

 
  • 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 behavior
  • Marketing communications should not play on superstition
 

Decency​ (Art. 3)

 
  • Marketing communications should not contain statements or audio or visual treatments which offend standards of decency currently prevailing in the country and culture concerned
 

Honesty (Art. 4)

 
  • Marketing communications should be so framed as not to abuse the trust of consumers or exploit their lack of experience or knowledge
  • Relevant factors likely to affect consumers’ decisions should be communicated in such a way and at such a time that consumers can take them into account
 

Truthfulness (Art. 5)

 

  • 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

 

Substantiation (Art. 6)

 

  • Descriptions, claims or illustrations relating to verifiable facts in marketing communications should be capable of substantiation. Claims that state or imply that a particular level or type of substantiation exists must have at least the level of substantiation advertised. Substantiation should be available so that evidence can be produced without delay and upon request to the self-regulatory organisations responsible for the implementation of the Code

 

identification and transparency (Art. 7)

 

  • Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews

 

identity of the marketer (Art. 8)

 

  • The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called “teaser advertisements”)
 

Use of technical/ scientific data and terminology (Art. 9)

 

  • Marketing communications should not
     
  • misuse technical data, e.g. research results or quotations from technical and scientific publications
  • present statistics in such a way as to exaggerate the validity of a product claim
  • use scientific terminology or vocabulary in such a way as falsely to suggest that a product claim has scientific validity

 

 

Use of 'free' and 'guarantee' (Art. 10)

 

  • The term "free", e.g. “free gift” or “free offer”, should be used only
     
    • where the offer involves no obligation whatsoever; or
    • where the only obligation is to pay shipping and handling charges which should not exceed the cost estimated to be incurred by the marketer, or
    • in conjunction with the purchase of another product, provided the price of that product has not been increased to cover all or part of the cost of the offer
       
  • Where free trial, free subscription and similar offers convert to paid transactions at the end of the free period, the terms and conditions of the paid conversion should be clearly, prominently and unambiguously disclosed before the consumer accepts the offer. Likewise, where a product is to be returned by the consumer at the end of the free period it should be made clear at the outset who will bear the cost for that
  • The procedure for returning the product should be as simple as possible, and any time limit should be clearly disclosed. See also Article C12 Right of withdrawal
  • Marketing communications should not state or imply that a “guarantee”, “warranty” or other expression having substantially the same meaning, offers the consumer rights additional to those provided by law when it does not
  • The terms of any guarantee or warranty, including the name and address of the guarantor, should be easily available to the consumer and limitations on consumer rights or remedies, where permitted by law, should be clear and conspicuous

 

Comparisons (Art. 11)​

 

  • Marketing communications containing comparisons should be so designed that the comparison is not likely to mislead, and should comply with the principles of fair competition. Points of comparison should be based on facts which can be substantiated and should not be unfairly selected

 

 

Denigration (Art. 12)

 

  • Marketing communications should not denigrate any person or group of persons, firm, organisation, industrial or commercial activity, profession or product, or seek to bring it or them into public contempt or ridicule

 

 

Testimonials (Art. 13)

 

  • Marketing communications should not contain or refer to any testimonial, endorsement or supportive documentation unless it is genuine, verifiable and relevant
  • Testimonials or endorsements which have become obsolete or misleading through passage of time should not be used

 

 

Portrayal or imitation of persons and references to personal property (Art. 14)

 

  • Marketing communications should not portray or refer to any persons, whether in a private or a public capacity, unless prior permission has been obtained; nor should marketing communications without prior permission depict or refer to any person’s property in a way likely to convey the impression of a personal endorsement of the product or organisation involved

 

 

Exploitation of goodwill (Art. 15)

 

  • Marketing communications should not make unjustifiable use of the name, initials, logo and/or trademarks of another firm, company or institution
  • Marketing communications should not in any way take undue advantage of another firm’s, individual’s or institution’s goodwill in its name, brands or other intellectual property, or take advantage of the goodwill earned by other marketing campaigns without prior consent

 

 

Imitation (Art. 16)

 

  • Marketing communications should not imitate those of another marketer in any way likely to mislead or confuse the consumer, for example through the general layout, text, slogan, visual treatment, music or sound effects
  • Where a marketer has established a distinctive marketing communications campaign in one or more countries, other marketers should not imitate that campaign in other countries where the marketer who originated the campaign may operate, thereby preventing the extension of the campaign to those countries within a reasonable period of time

 

 

Safety and health (Art. 17)

 

  • Marketing communications should not, without justification on educational or social grounds, contain any visual portrayal or any description of potentially dangerous practices, or situations which show a disregard for safety or health, as defined by local national standards
  • Instructions for use should include appropriate safety warnings and, where necessary, disclaimers
  • Children should be shown to be under adult supervision whenever a product or an activity involves a safety risk
  • Information provided with the product should include proper directions for use and full instructions covering health and safety aspects whenever necessary
  • Such health and safety warnings should be made clear by the use of pictures, text or a combination of both

 

 

 

  • An 'environmental' claim is defined in the ICC Code as any claim in which explicit or implicit reference is made to the environmental or ecological aspects relating to the production, packaging, distribution, use/consumption or disposal of products. Environmental claims can be made in any medium, including labelling, package inserts, promotional and point-of-sales materials, product literature, as well as digital interactive media (Scope of Chapter D)

 

 

D1. Honest and truthful presentation

 

  • Marketing communication should be so framed as not to abuse consumers’ concern for the environment, or exploit their possible lack of environmental knowledge
  • Marketing communication should not contain any statement or visual treatment likely to mislead consumers in any way about the environmental aspects or advantages of products, or about actions being taken by the marketer in favour of the environment. Overstatement of environmental attributes, such as highlighting a marginal improvement as a major gain, or use of statistics in a misleading way (“we have doubled the recycled content of our product” when there was only a small percentage to begin with) are examples. Marketing communications that refer to specific products or activities should not imply, without appropriate substantiation, that they extend to the whole performance of a company, group or industry
  • An environmental claim should be relevant to the particular product being promoted and relate only to aspects that already exist or are likely to be realised during the product’s life, including customary and usual disposal or reasonably foreseeable improper disposal. It should be clear to what the claim relates, e.g. the product, a specific ingredient of the product, or its packaging or a specific ingredient of the packaging. A pre-existing but previously undisclosed aspect should not be presented as new. Environmental claims should be up to date and should, where appropriate, be reassessed with regard to relevant developments
  • Vague or non-specific claims of environmental benefit, which may convey a range of meanings to consumers, should be made only if they are valid, without qualification, in all reasonably foreseeable circumstances. If this is not the case, general environmental claims should either be qualified or avoided. In particular, claims such as “environmentally friendly,” “ecologically safe,” “green,” “sustainable,” “carbon friendly” or any other claim implying that a product or an activity has no impact — or only a positive impact — on the environment, should not be used without qualification unless a very high standard of proof is available. As long as there are no definitive, generally accepted methods for measuring sustainability or confirming its accomplishment, no claim to have achieved it should be made
  • Qualifications should be clear, prominent and readily understandable; the qualification should appear in close proximity to the claim being qualified, to ensure that they are read together. There may be circumstances where it is appropriate to use a qualifier that refers a consumer to a website where accurate additional information may be obtained. This technique is particularly suitable for communicating about after-use disposal. For example, it is not possible to provide a complete list of areas where a product may be accepted for recycling on a product package. A claim such as “Recyclable in many communities, visit [URL] to check on facilities near you,” provides a means of advising consumers where to locate information on communities where a particular material or product is accepted for recycling

 

 

D2. Scientific research

 

  • Marketing communications should use technical demonstrations or scientific findings about environmental impact only when they are backed by reliable scientific evidence
  • Environmental jargon or scientific terminology is acceptable provided it is relevant and used in a way that can be readily understood by those to whom the message is directed. (See also article 9 of the Code - Use of technical/ scientific data and terminology)
  • An environmental claim relating to health, safety or any other benefit should be made only where it is supported by reliable scientific evidence

 

 

D3. Superiority and comparative claims

 

  • Any comparative claim should be specific and the basis for the comparison should be clear. Environmental superiority over competitors should be claimed only when a significant advantage can be demonstrated. Products being compared should meet the same needs and be intended for the same purpose
  • Comparative claims, whether the comparison is with the marketer’s own previous process or product or with those of a competitor, should be worded in such a way as to make it clear whether the advantage being claimed is absolute or relative
  • Improvements related to a product and its packaging should be presented separately, and should not be combined, in keeping with the principle that claims should be specific and clearly relate to the product, an ingredient of the product, or the packaging or ingredient of the packaging

 

 

D4. Product life-cycle, components and elements

 

  • Environmental claims should not be presented in such a way as to imply that they relate to more stages of a product’s life-cycle, or to more of its properties, than is justified by the evidence; it should always be clear to which stage or which property a claim refers. A life-cycle benefits claim should be substantiated by a life cycle analysis
  • When a claim refers to the reduction of components or elements having an environmental impact, it should be clear what has been reduced. Such claims are justified only if they relate to alternative processes, components or elements which result in a significant environmental improvement
  • Environmental claims should not be based on the absence of a component, ingredient, feature or impact that has never been associated with the product category concerned unless qualified to indicate that the product or category has never been associated with the particular component, ingredient, feature or impact. Conversely, generic features or ingredients, which are common to all or most products in the category concerned, should not be presented as if they were a unique or remarkable characteristic of the product being promoted
  • Claims that a product does not contain a particular ingredient or component, e.g. that the product is “X-free”, should be used only when the level of the specified substance does not exceed that of an acknowledged trace contaminant or background level Note: “Trace contaminant” and “background level” are not precise terms. “Trace contaminant” implies primarily manufacturing impurity, whereas “background level” is typically used in the context of naturally occurring substances. Claims often need to be based on specific substance-by-substance assessment to demonstrate that the level is below that causing harm. Also, the exact definition of trace contaminants may depend on the product area concerned. If the substance is not added intentionally during processing, and manufacturing operations limit the potential for cross-contamination, a claim such as “no intentionally added xx” may be appropriate. However, if achieving the claimed reduction results in an increase in other harmful materials, the claim may be misleading. Claims that a product, package or component is “free” of a chemical or substance often are intended as an express or implied health claim in addition to an environmental claim. The substantiation necessary to support an express or implied health or safety claim may be different from the substantiation required to support the environmental benefit claim. The advertiser must be sure to have reliable scientific evidence to support an express or implied health and safety claim in accordance with other relevant provisions of the Code

 

 

D5. Signs and symbols

 

  • Environmental signs or symbols should be used in marketing communication only when the source of those signs or symbols is clearly indicated and there is no likelihood of confusion over their meaning. Such signs and symbols should not be used in such a way as to falsely suggest official approval or third-party certification

 

 

D6. Waste handling

 

  • Environmental claims referring to waste handling are acceptable provided that the recommended method of separation, collection, processing or disposal is generally accepted or conveniently available to a reasonable proportion of consumers in the area concerned. If not, the extent of availability should be accurately described

 

 

D7. Responsibility

 

  • For this chapter, the rules on responsibility laid down in the general provisions apply (see article 23)

 

 

 

Additional guidance

 

Terms important in communicating environmental attributes of products tend to change. The ICC Framework for Responsible Environmental Marketing Communications provides additional examples, definitions of common terms, and a checklist of factors that should be considered when developing marketing communications that include an environmental claim.

 

The ICC Framework for Responsible Environmental Marketing Communications. Included in the Framework is a checklist aimed at those developing marketing communications campaigns around environmental claims, and a chart that provides an easy reference to relevant Code provisions, Chapter D principles, and interpretations and comments on specific current issues related to environmental marketing

 

  • Appendix I: Environmental Claims Checklist; factors that should be considered when developing marketing communications that include an environmental claim
  • Appendix II

 

  • Summary of the General Provisions of the Consolidated ICC Code and those outlined in Chapter E on environmental claims, supplemented by additional commentary and guidance to aid practitioners in applying the principles to environmental advertising.
  • Guidance on use of selected specific environmental claims often appearing in marcoms 

 

 

 

 

Applicable Self-Regulation 

 

 

 

Article 18.1. General principles

 

  • Special care should be taken in marketing communications directed to or featuring children or teens
     
    • Such communications should not undermine positive social behaviour, lifestyles and attitudes
    • Products which are illegal for children or teens to purchase or are unsuitable for them should not be advertised in media targeted to them
    • Marketing communications directed to children or teens should not be inserted in media where the editorial matter is unsuitable for them

      For rules on data protection relating specifically to children’s personal data see article 19

      For other specific rules on marketing communications with regard to children:

       
    • with respect to direct marketing and digital marketing communications see chapter C, article C7
    • within the context of food and non-alcoholic beverages see the ICC Framework for responsible food and beverage marketing communications

 

 

18.2. Inexperience and credulity of children

 

Marketing communications should not exploit inexperience or credulity of children, with particular regard to the following areas:

 

  1. When demonstrating a product’s performance and use, marketing communications should not
     
    1. minimise the degree of skill or understate the age level generally required to assemble or operate products
    2. exaggerate the true size, value, nature, durability and performance of the product
    3. fail to disclose information about the need for additional purchases, such as accessories, or individual items in a collection or series, required to produce the result shown or described
       
  2. While the use of fantasy is appropriate for younger as well as older children, it should not make it difficult for them to distinguish between reality and fantasy
  3. Marketing communications directed to children should be clearly distinguishable to them as such
 

 

18.3. Avoidance of harm

 

  • Marketing communications should not contain any statement or visual treatment that could have the effect of harming children or teens mentally, morally or physically. Children and teens should not be portrayed in unsafe situations or engaging in actions harmful to themselves or others, or be encouraged to engage in potentially hazardous activities or inappropriate behaviour in light of the expected physical and mental capabilities of the target demographic

 

 

18.4. Social values

 

  • Marketing communications should not suggest that possession or use of the promoted product will give a child or young person physical, psychological or social advantages over other children or teens, or that not possessing the product will have the opposite effect
  • Marketing communications should not undermine the authority, responsibility, judgment or tastes of parents, having regard to relevant social and cultural values
  • Marketing communications should not include any direct appeal to children and young people to persuade their parents or other adults to buy products for them
  • Prices should not be presented in such a way as to lead children and young people to an unrealistic perception of the cost or value of the product, for example by minimising them. Marketing communications should not imply that the product being promoted is immediately within the reach of every family budget
  • Marketing communications which invite children and young people to contact the marketer should encourage them to obtain the permission of a parent or other appropriate adult if any cost, including that of a communication, is involved

 

 

 

 

This sector has a separate database on this single topic. Access via the drop-down on the home page 

 

 

Applicable Self-Regulation and legislation 

 
  • ICC Framework for Responsible Food and Beverage Marketing Communications here
  • The EU Pledge, enhanced July 2021 effective Jan 2022
  • Regulation 1924/2006 on nutrition and health claims made on foods
  • Regulation 432/2012 establishing a list of permitted health claims on food 
  • Regulation 1169/2011 on the provision of food information to consumers
  • Regulation 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control

 

 

 

This sector has a separate database on this single topic. Access via the drop-down on the home page of this website 

 

 

Applicable Self-Regulation and legislation 

 

 

 

Legislation 

 

Article 22, AVMS Directive. Television advertising and teleshopping for alcoholic beverages shall comply with the following criteria:

 

  1. it may not be aimed specifically at minors or, in particular, depict minors consuming these beverages
  2. it shall not link the consumption of alcohol to enhanced physical performance or to driving
  3. it shall not create the impression that the consumption of alcohol contributes towards social or sexual success
  4. it shall not claim that alcohol has therapeutic qualities or that it is a stimulant, a sedative or a means of resolving personal conflicts
  5. it shall not encourage immoderate consumption of alcohol or present abstinence or moderation in a negative light
  6. it shall not place emphasis on high alcoholic content as being a positive quality of the beverages

 

 

 

2.1 General Provisions from the Unfair Commercial Practices Directive 2005/29/EC

Article 6. Misleading actions

 

1.   A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:

 

(a) the existence or nature of the product

(b) the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product

(c) the extent of the trader's commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product

(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage

(e) the need for a service, part, replacement or repair

(f) the nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions

(g) the consumer's rights, including the right to replacement or reimbursement under Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (8), or the risks he may face

 

2.   A commercial practice shall also be regarded as misleading if, in its factual context, taking account of all its features and circumstances, it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves:

 

(a) any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor

(b) non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken to be bound, where:
 

(i) the commitment is not aspirational but is firm and is capable of being verified, and

(ii) the trader indicates in a commercial practice that he is bound by the code

 

 

Article 7. Misleading omissions

 

1. A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise

 

2. It shall also be regarded as a misleading omission when, taking account of the matters described in paragraph 1, a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in that paragraph or fails to identify the commercial intent of the commercial practice if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise

 

3. Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether information has been omitted

 

4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:

 

(a) the main characteristics of the product, to an extent appropriate to the medium and the product

(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting

(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably 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 reasonably be calculated in advance, the fact that such additional charges may be payable

(d) the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence

(e) for products and transactions involving a right of withdrawal or cancellation, the existence of such a right

 

5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material

 

 

ANNEX I

 

Commercial Practices which are in all circumstances considered unfair 

Marcoms-relevant only

 

 

1. Claiming to be a signatory to a code of conduct when the trader is not

2. Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation

3. Claiming that a code of conduct has an endorsement from a public or other body which it does not have

4. Claiming that a trader (including his commercial practices) or a product has been approved, endorsed or authorised by a public or private body when he/ it has not or making such a claim without complying with the terms of the approval, endorsement or authorisation

5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)

6. Making an invitation to purchase products at a specified price and then:

 

(a) refusing to show the advertised item to consumers; or

(b) refusing to take orders for it or deliver it within a reasonable time; or

(c) demonstrating a defective sample of it,

 

with the intention of promoting a different product (bait and switch)

 

7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice

9. Stating or otherwise creating the impression that a product can legally be sold when it cannot

10. Presenting rights given to consumers in law as a distinctive feature of the trader's offer

11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1)

13. Promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not

16. Claiming that products are able to facilitate winning in games of chance

17. Falsely claiming that a product is able to cure illnesses, dysfunction or malformations

18. Passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions

19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent

20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item

21. Including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not

22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer

 

 

Aggressive commercial practices

 

26. Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation. This is without prejudice to Article 10 of Directive 97/7/EC and Directives 95/46/EC (2) and 2002/58/EC

28. Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them. This provision is without prejudice to Article 16 of Directive 89/552/EEC on television broadcasting

31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:

 

  • there is no prize or other equivalent benefit, or
  • taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost

 

 

 

2.2.1. Article 3 (4) of Directive 98/6/EC on consumer protection in the indication of the prices of products offered to consumers

 

Article 2

 

For the purposes of this Directive:

 

(a) 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;

(b) unit price shall mean 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 or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products;

(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer

(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity

(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity

 

Article 3

 

1.  The selling price and the unit price shall be indicated for all products referred to in Article 1, the indication of the unit price being subject to the provisions of Article 5. The unit price need not be indicated if it is identical to the sales price.

2.   Member States may decide not to apply paragraph 1 to:

 

  • products supplied in the course of the provision of a service
  • sales by auction and sales of works of art and antiques

 

3.   For products sold in bulk, only the unit price must be indicated

4.   Any advertisement which mentions the selling price of products referred to in Article 1 shall also indicate the unit price subject to Article 5

 

Article 4

 

1.   The selling price and the unit price must be unambiguous, easily identifiable and clearly legible. Member States may provide that the maximum number of prices to be indicated be limited

2.   The unit price shall refer to a quantity declared in accordance with national and Community provisions

 

Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight

 

Article 5

 

1.   Member States may waive the obligation to indicate the unit price of products for which such indication would not be useful because of the products' nature or purpose or would be liable to create confusion

2.   With a view to implementing paragraph 1, Member States may, in the case of non-food products, establish a list of the products or product categories to which the obligation to indicate the unit price shall remain applicable

 

 

2.2.2. Extracts from UCPD

 

Article 6

Misleading actions

 

1.   A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:

 

 (d) the price or the manner in which the price is calculated, or the existence of a specific price advantage

 

Article 7

Misleading omissions

 

4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:

 

(a) the main characteristics of the product, to an extent appropriate to the medium and the product

(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting

(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably 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 reasonably be calculated in advance, the fact that such additional charges may be payable

 

Annex I

 

5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)

6. Making an invitation to purchase products at a specified price and then:

 

(a) refusing to show the advertised item to consumers; or

(b) refusing to take orders for it or deliver it within a reasonable time; or

(c) demonstrating a defective sample of it,

 

with the intention of promoting a different product ('bait and switch')

 

 

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2.2.3. Pricing-related extracts from the ICC Advertising and Marketing Communications Code:

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

 

 

 

2.2.4.The AVMS Directive and amend 

 

 

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02010L0013-20181218

Content rules excluding Alcohol (see pt. 1.5 above) in audiovisual commercial communications

 

 

Article 9

 

  1. Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:

 

  1. audiovisual commercial communications shall be readily recognisable as such; surreptitious audiovisual commercial communication shall be prohibited
  2. audiovisual commercial communications shall not use subliminal techniques
  3. audiovisual commercial communications 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. encourage behaviour prejudicial to health or safety
  4. encourage behaviour grossly prejudicial to the protection of the environment

 

  1. all forms of audiovisual commercial communications for cigarettes and other tobacco products, as well as for electronic cigarettes and refill containers, shall be prohibited
  2. audiovisual commercial communications for alcoholic beverages shall not be aimed specifically at minors and shall not encourage immoderate consumption of such beverages
  3. audiovisual commercial communications for medicinal products and medical treatment available only on prescription in the Member State within whose jurisdiction the media service provider falls shall be prohibited
  4. audiovisual commercial communications shall not cause physical, mental or moral detriment to minors; therefore, they shall not directly exhort minors to buy or hire a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, or unreasonably show minors in dangerous situations

 

  1. Audiovisual commercial communications for alcoholic beverages in on-demand audiovisual media services, with the exception of sponsorship and product placement, shall comply with the criteria set out in Article 22 (see pt. 1.5 above)

 

The AVMS Directive includes some further new provisions from Directive 2018/1808 which may have implications for food and alcohol advertising in particular. See the extracted clauses here, in particular article 4

 

 

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C. Channel Rules

1. TV/Radio/VOD

Sector

Section C

 

  • There are no rules specific to Comparative advertising in these channels
  • The Content rules set out in our earlier Section B apply. As a ‘snapshot’:

 

  • the Self-Regulatory codes in English from Deutscher Werberat are here; these do not include specific comparative advertising measures, as in Germany that role largely falls to legislation/ WBZ (see below)
  • The core legislation and particularly important in Germany is the UWG or Unfair Competition Act (link will take you to the German original together with an English translation); see sections 5 and 6 for specific provisions
  • The UWG is deployed by  Wettbewerbszentrale (WBZ), literally the Competition Centre, which ‘is the largest and most influential self-regulatory institution operating nationwide and across borders to enforce the law against unfair competition.’ (From their website)
  • The general channel (i.e. placement) rules also apply and can be found under the General tab below. These include, for example, sponsorship and product placement rules in TV and radio

 

 

.........................................................

General

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 

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 

 

 

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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Read more

International

SECTION C TV/AV AND RADIO

 

 
APPLICABLE SELF-REGULATION AND LEGISLATION
 
  • These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth programming; rules for channel-sensitive product sectors such as Alcohol or Gambling can be found under their respective headings on the main website
  • For Content rules in all channels, refer to the earlier Content Section B. The principal source of general international Content rules is the ICC Advertising and Marketing Communications Code, which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
  • Chapter B of the ICC Code linked above covers media sponsorship (Art. B12). The rules do not include product placement
  • The Audiovisual Media Services (AVMS) Directive 2010/13/EU is the key legislation; provisions shown below 

 

 

SPONSORSHIP (from the ICC Code) 

 

Article 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

 

LEGISLATION KEY CLAUSES 

 

Note: The AVMS Directive is the source of rules for e.g. programme sponsorship and product placement. Observation of those rules is largely the responsibility of the media owners, so we don’t set them out below. They are available from the linked AVMS Directive (consolidated version following 2018/1808 amends, shown in red below) and under our General sector. Clauses below are those most relevant to advertising content

 

 

Article 9

 

1. Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:

 

  1. Audiovisual commercial communications shall be readily recognisable as such. Surreptitious audiovisual commercial communication shall be prohibited
  2. Audiovisual commercial communications shall not use subliminal techniques
  3. Audiovisual commercial communications 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. Encourage behaviour prejudicial to health or safety
  4. Encourage behaviour grossly prejudicial to the protection of the environment

 

  1. All forms of audiovisual commercial communications for cigarettes and other tobacco products, as well as for electronic cigarettes and refill containers shall be prohibited;
    shall be prohibited
  2. Audiovisual commercial communications for alcoholic beverages shall not be aimed specifically at minors and shall not encourage immoderate consumption of such beverages
  3. Audiovisual commercial communication for medicinal products and medical treatment available only on prescription in the Member State within whose jurisdiction the media service provider falls shall be prohibited
  4. Audiovisual commercial communications shall not cause physical or moral detriment to minors. Therefore they shall not directly exhort minors to buy or hire a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, or unreasonably show minors in dangerous situations

 

2. Member States and the Commission shall encourage media service providers to develop codes of conduct regarding inappropriate audiovisual commercial communications, accompanying or included in children’s programmes, of foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular those such as fat, trans-fatty acids, salt/sodium and sugars, excessive intakes of which in the overall diet are not recommended. See 4. below

 

2.  Audiovisual commercial communications for alcoholic beverages in on-demand audiovisual media services, with the exception of sponsorship and product placement, shall comply with the criteria set out in Article 22.
3.  Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications for alcoholic beverages. Those codes shall aim to effectively reduce the exposure of minors to audiovisual commercial communications for alcoholic beverages.

4.  Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications, accompanying or included in children's programmes, for foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular fat, trans-fatty acids, salt or sodium and sugars, of which excessive intakes in the overall diet are not recommended.
Those codes shall aim to effectively reduce the exposure of children to audiovisual commercial communications for such foods and beverages. They shall aim to provide that such audiovisual commercial communications do not emphasise the positive quality of the nutritional aspects of such foods and beverages.
5.  Member States and the Commission may foster self-regulation, for the purposes of this Article, through Union codes of conduct as referred to in Article 4a (2).

 

Article 4a is found here 

 
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Read more

2. Cinema/Press/Outdoor

Sector

 

  • There are no rules specific to Comparative advertising in these channels
  • The Content rules set out in our earlier Section B apply. As a ‘snapshot’:

 

  • the Self-Regulatory codes in English from Deutscher Werberat are here; these do not include specific comparative advertising measures, as in Germany that role largely falls to legislation/ WBZ (see below)
  • The core legislation and particularly important in Germany is the UWG or Unfair Competition Act (link will take you to the German original together with an English translation); see sections 5 and 6 for specific provisions
  • The UWG is deployed by  Wettbewerbszentrale (WBZ), literally the Competition Centre, which ‘is the largest and most influential self-regulatory institution operating nationwide and across borders to enforce the law against unfair competition.’ (from their website)

 

 

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General

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

 

 

..................................................................

International

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

Applicable Self-Regulation and legislation 

 

  • These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth publications or films for children; rules for channel-sensitive product sectors such as Alcohol or Gambling can be found under their respective headings on the main website
  • For Content rules in all channels, refer to the earlier Content Section B. The principal source of general international Content rules is the ICC Advertising and Marketing Communications Code, which applies to all channels. Where there are content rules specific to the channels in this section, we show them below. In the context of ‘Native’ advertising in particular, articles 7 and 8 of the ICC Code shown below are relevant
  • The Unfair Commercial Practices Directive 2005/29/EC; re native advertising in particular in print, and all provisions related to misleadingness etc. apply in all media; some clauses below
  • In terms of channel rules, Chapter B (Sponsorship) of the ICC Code will apply; article B12 (shown below)

 

Refer to Content Section B for provisions; of particular relevance below:

 

 

Identification and transparency (Art. 7)

 

  • Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews.

 

Identity of the marketer (Art. 8)

 

  • The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called 'teaser advertisements').

 

 

Legislation key clauses 

 

Annex I of the UCPD 

 

11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1)

22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer

 

 

Article 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

 

 

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3. Online Commercial Communications

Sector

 

CONTEXT

 

  • This section covers the online environment in general terms; more specific digital channels such as email, OBA, own websites etc. follow under later headers
  • The most important point is that the content rules set out in Section B apply to online advertising. See the Deutscher Werberat declaration for the self-regulatory aspect of the rules here
  • Related to the above are two further significant issues in this channel:

 

  1. The definition of advertising, which can be found either in the MACAD Directive 2006/114/EC under article 2, which also defines comparative advertising, or under the Unfair Competition Act (EN) Section 2 Definitions. This is important because of the more ‘blurred’ lines between advertising and ‘editorial’ especially in owned websites (covered later)
  2. The identification of advertising, i.e. declaring that and ad is an ad where that is not obvious. This issue applies not only to online ‘native’ advertising, but to the environment in e.g. social media and especially Influencer marketing

 

  • The issues above are applicable to all advertising, Comparative included, and are set out in full below under the General tab. There’s a ‘snapshot’ below meanwhile:

 

 

CORE SOURCES AND RULES ONLINE

 

  • The rules set out in our earlier Content Section B apply online, except where those identify broadcast advertising
  • The Self-Regulatory codes in English from Deutscher Werberat are here; these do not include specific comparative advertising measures, as in Germany that aspect is covered by legislation/ WBZ (see below)
  • The core legislation and particularly important in Germany is the UWG or Unfair Competition Act (link will take you to the German original together with an English translation); see sections 5 and 6 for specific comparative advertising provisions and Unreasonable Harassment under section 7 which incorporates opt-in rules
  • The Telemedia Act (TMG) DE / EN : carries e-commerce requirements; special information to be provided in the case of commercial communications
  • The Interstate Treaty on Broadcasting and Telemedia (RStV) Section VI Telemedia; delivers information requirements and recognisability  DE / EN
  • Full requirements for Consent and Information is under the General tab immediately below or the General tab under Direct Electronic communications, as applicable
  • Guideline of the State Media Authorities: Advertising Identification of Social Media Offers. 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 DE / EN

 

 

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General

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 Rechtsanwälte 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 enters into force December 1, 2021
  • The rules from our earlier Content Section B apply online, except those for broadcast media; at minimum, the Deutscher Werberat ground rules (EN) apply, and the ICC Advertising and Marketing Communications Code is also taken into consideration when rulings are made
  • The Act Against Unfair Competition (UWG) DE / EN (WR translation of key provisions: EN) misleading omission s. 5a UWG; and unreasonable harassment s. 7 UWG

 

 

GUIDELINES

 

  • State Media Authorities: Guidelines for labelling advertising in online media DE / EN; this is probably the most influential and helpful of the various sources 
  • 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

 

 

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, probably as a result, stated in an earler flyer  that the use of identifiers like #ad, #sponsored by, or #powered by are 'not recommended'; subsequently, a 2019 flyer referenced above Advertising Identification of Social Media Offers (EN) sets out guidelines according to the relationship (with the product/ brand) and the channel context. Identification where required is generally recommended as  a clearly legible 'Werbung' or 'Anzeige' (advertisement). This principle is followed in their June 2021 Guidelines for labelling advertising in online media DE / EN 
 
 

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

 

 Cathy Hummels

 

The German Ministry of Justice has announced plans (DE) for regulation providing clarity on this issue.’ An action brought by The Social Advertising Association (VSW) complained about posts on Hummels' Instagram account that were not marked as advertising. The prosecution argued that, paid or not, the featuring of products in this context is ‘advertising’ and should therefore be marked. Hummels argued that magazines don’t have to do that. In January 2019, Wettbewerbszentrale published updated guidelines for Influencer Marketing (DE)

 

 

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International

 

 

CONTEXT

 

This particular section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as those for email, OBA, Social Networks etc., follow. As the boundaries online can be less clear, and as a considerable amount of space online is advertiser-owned, there’s greater focus on the identification of advertising, as advertising is in remit (i.e. subject to the rules) online in Owned and (some) Earned space as well as Paid

 

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

 

 

Legislation

 

  • Directive 2002/58/EC on privacy and electronic communications
  • Directive 2000/31/EC on electronic commerce

  • Some online channels are also subject to rules from the AVMS Directive 2010/13/EU following amends from Directive 2018/1808 which extended scope into e.g. video-sharing platforms. Which channels are effected depends on how the directive is transposed in individual countries. Content rules, shown here, are not signifcantly changed anyway; changes are more to do with where those rules apply. The prudent view is probably that AVMS rules apply or will apply to audiovisual commercial communications online 

 

 

Self-Regulatory clauses 

 

Chapter C ICC Code; Direct Marketing and Digital Marketing Communications (extracts) 

 

C1. Identification and transparency

 

  • Marketing communications should be properly identified as such in accordance with Article 7 of the General Provisions. Subject descriptors should be accurate and the commercial nature of the communication should be transparent to the consumer
  • Where a marketer has created or offered consideration for a product endorsement or review, the commercial nature should be transparent. In such cases, the endorsement or review should not state or imply that it is from or conferred by an individual consumer or independent body
  • Marketers should take appropriate steps to ensure that the commercial nature of the content of a social network site or profile under the control or influence of a marketer is clearly indicated and that the rules and standards of acceptable commercial behaviour in these networks are respected
  • Any image, sound or text which, by its size, volume or any other visual characteristic, is likely to materially reduce or obscure the legibility and clarity of the offer should be avoided

 

 

C2. Identity of the marketer

 

  • The identity of the marketer and/ or operator and details of where and how they may be contacted should be given in the offer, so as to enable the consumer to communicate directly and effectively with them. This information should be where technically feasible available in a way which the consumer could access and keep, i.e. via a separate document offline, an online or downloadable document, email or SMS or log-in account; it should not, for example, appear only on an order form which the consumer is required to return.
  • At the time of delivery of the product, the marketer’s full name, address, e-mail and phone number should be supplied to the consumer
 

 

C7. Marketing communications and children

 

  • Parents and/or guardians should be encouraged to participate in and/or supervise their children’s interactive activities
  • Personal data about individuals known to be children should only be disclosed to third parties after obtaining consent from a parent or legal guardian or where disclosure is authorised by law. Third parties do not include agents or others who provide support for operational purposes of the website and who do not use or disclose a child’s personal information for any other purpose
  • Websites devoted to products or services that are subject to age restrictions such as alcoholic beverages, gambling and tobacco products should undertake measures, such as age screens, to restrict access to such websites by minors
  • Digital marketing communications directed at children in a particular age group should be appropriate and suitable for such children

 

 

C10. Respect for the potential sensitivities of a global audience

 

  • Marketers should strive to avoid causing offense by respecting social norms, local culture and tradition in markets where they are directing marketing communications. Given the global reach of electronic networks, and the variety and diversity of possible recipients, marketers should take steps to align their marketing communications with the principles of social responsibility contained in the General Provisions

 

 

Legislative clauses

 

Directive 2002/58/EC; Article 13

Unsolicited communications

 

  1. The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent
  2. Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC*, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use
  3. Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation
  4. In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited
  5. Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected

* Now repealed; GDPR applies 

 

Directive 2000/31/EC: article 5

 

General information to be provided

 

  1. In addition to other information requirements established by Community law, Member States shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information:
     

(a) The name of the service provider

(b) The geographic address at which the service provider is established

(c) The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner

(d) Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register

(e) Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority

(f) As concerns the regulated professions:
 

- any professional body or similar institution with which the service provider is registered

- the professional title and the Member State where it has been granted

- a reference to the applicable professional rules in the Member State of establishment and the means to access them
 

(g) Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment(29)
 

  1. In addition to other information requirements established by Community law, Member States shall at least ensure that, where information society services refer to prices, these are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs

 

 

Section 2: Commercial communications

 

Article 6

 

Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:

 

  1. The commercial communication shall be clearly identifiable as such
  2. The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable
  3. Promotional offers, such as discounts, premiums and gifts, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously
  4. Promotional competitions or games, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions for participation shall be easily accessible and be presented clearly and unambiguously

 

 

Article 7

Unsolicited commercial communication

 

  1. In addition to other requirements established by Community law, Member States which permit unsolicited commercial communication by electronic mail shall ensure that such commercial communication by a service provider established in their territory shall be identifiable clearly and unambiguously as such as soon as it is received by the recipient
  2. Without prejudice to Directive 97/7/EC and Directive 97/66/EC, Member States shall take measures to ensure that service providers undertaking unsolicited commercial communications by electronic mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves

 

Guidance

 

European Data Protection Board / Article 29 Working Party

 

  • Working Document 02/2013 providing guidance on obtaining consent for cookies here
  • Opinion 15/2011 on the definition of consent here
  • May 2020 Guidelines on Consent under Regulation 2016/679 here

 

 

EASA Digital Marketing Communications Best Practice Recommendation. This document:

 

  • Recognises the global nature of digital media and the need to develop a coordinated response across EASA’s membership
  • Provides clear guidance to EASA’s SRO members on how to determine whether content under review is a marketing communication in the digital space
  • Encourages local SROs and advertising industry representatives to ensure that the self-regulatory remit at national level is aligned with the recommendations set out in this document
  • Identifies a non-exhaustive list of digital marketing communications practices which are recommended to be in the SRO’s remit
  • Identifies forms of digital content which lie outside of SRO’s remit under all circumstances

 

 

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4. Cookies & OBA

Sector

 

COOKIES

 

  • There are no cookie rules specific to the Comparative sector; see below under the General tab for cookie rules that apply to all sectors 

 

 

OBA

 

  • OBA is like any other advertising in the sense that it is subject to the rules; in this (Comparative advertising) case, those are largely from legislation: the UWG or Unfair Competition Act (EN); see Sections 5 and 6 for specific Comparative advertising provisions 
  • The other content rules set out in our earlier Content Section B also apply, except where they identify broadcast advertising) as Comparative advertising must also observe e.g. taste and decency rules. the Self-Regulatory codes in English from Deutscher Werberat are here
  • The channel (i.e. placement) rules such as issues of Consent are set out below under the General tab as they apply to all sectors, Comparative advertising included 

 

 

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General

SECTION C: COOKIES AND OBA

 

 

Privacy issues should be reviewed with specialist advisors

 

 

APPLICABLE LEGISLATION 

 

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, 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 Rechtsanwälte/ Lexology October 2021 is helpful explanation.

 

  • 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 Aricle 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

 

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

 

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 apply, and the ICC Advertising and Marketing Communications Code 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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International

 

 

 

1. COOKIES

 

Applicable legislation, Self-Regulation and guidance 

Note that legislation is implemented in member states, sometimes with nuance 

 

 

 

 

Article 29/EDPB Working Party documents

 

  • Working Document 02/2013 providing guidance on obtaining consent for cookies here
  • Opinion 04/2012 on Cookie Consent Exemption here
  • Opinion 15/2011 on the definition of consent here
  • May 2020 Guidelines on Consent under Regulation 2016/679 here
  • Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR here

 

As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid

 

 

Legislation

 

Directive on privacy and electronic communications 2002/58/EC as amended by Directive 2009/136/EC

 

  • Member States shall ensure that the use of electronic communications networks to store information or to gain access to information stored in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned is provided with clear and comprehensive information in accordance with Directive 95/46/EC, inter alia about the purposes of the processing, and is offered the right to refuse such processing by the data controller. This shall not prevent any technical storage or access for the sole purpose of carrying out or facilitating the transmission of a communication over an electronic communications network, or as strictly necessary in order to provide an information society service explicitly requested by the subscriber or user (Art. 5.3)

 

 

GDPR

 

  • The introduction of the GDPR 2016/679 from May 25, 2018: in the event that cookies that identify individuals are deployed, then GDPR lawful processing rules may apply. GDPR/ privacy issues should be overseen by legal advisors

 

 

2. OBA 

 

EDAA has published their latest European Advertising Consumer Research Report, which provides an overview of respondents’ attitudes and awareness of the European Self-Regulatory Programme for Online Behavioural Advertising (OBA) in ten European markets (Belgium, France, Great Britain, Germany, Ireland, Italy, Poland, Romania, Spain & Sweden). Read the full report here

 

Applicable regulation

 

 

 

Application of notice and choice provisions

 

  • Any third party participating in OBA should adhere to principles of notice and user control as set out below
  • Transparency of data information collection and use, and the ability for users and consumers to choose whether to share their data for OBA purposes is vital
  • The following guidance provides further clarification for how these principles apply to OBA

 

 

C22.1. Notice

 

  • Third parties and website operators should give clear and conspicuous notice on their websites describing their OBA data collection and use practices
  • Such notice should include clear descriptions of the type of data and purpose for which it is being collected and an easy to use mechanism for exercising choice with regard to the collection and use of the data for OBA purposes
  • Notice should be provided through deployment of one or multiple mechanisms for clearly disclosing and informing Internet users about data collection and use practices

 

 

C22.2. User control

 

  • Third parties should make available a mechanism for web users to exercise their choice with respect to the collection and use of data for OBA purposes and the transfer of such data to third parties for OBA. Such choice should be available via a link from the notice mechanisms described in footnote 9 (Note: footnote 9 does not appear to relate; waiting for feedback from the ICC)

 

 

C22.5. Data security

 

  • Appropriate physical, electronic, and administrative safeguards to protect the data collected and used for IBA purposes should be maintained at all times
  • Data that is collected and used for IBA should only be retained for as long as necessary for the business purpose stated in the consent

 

 

C22.6 Children

 

  • Segments specifically designed to target children for IBA purposes should not be created without appropriate parental consent

 

 

C22.7. Sensitive data segmentation

 

  • In general, companies should not create or use IBA segments based on sensitive data.Those seeking to create or use such IBA segments relying on use of sensitive data as defined under applicable law should obtain a web user’s explicit consent, prior to engaging in IBA using that information

 

 

Opinion/ guidance 

 

Article 29 Working Party* documents

 

 

*As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid

 

 

 

European Self-Regulatory programme for OBA

 

A good number of companies and organisations in Europe are engaged in the European self-regulatory programme for OBA, administered by the European Interactive Digital Advertising Alliance (EDAA http://www.edaa.eu). The OBA Icon, 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 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

Sector

 

  • There are no rules specific to Comparative advertising in direct electronic marcoms
  • The Content rules set out in our earlier Section B apply, except for those that identify broadcast. As a ‘snapshot’:

 

  • the Self-Regulatory codes in English from Deutscher Werberat are here; these do not include specific comparative advertising measures, as in Germany that role largely falls to legislation/ WBZ (see below)
  • The core legislation and particularly important in Germany is the Unfair Competition Act (EN). Sections 5 and 6 cover comparative advertising
  • This law above also includes the opt-in/ soft opt-in rules for direct electronic marcoms under Section 7
  • The other general channel (i.e. placement) rules also apply and are set out in full under the General tab below. These include statutory consent and information requirements

 

 

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General

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

CONTEXT 

 

The communications that we deal with in this section are ‘direct electronic marcoms’ such as email and SMS. 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 earlior 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/ Lexology 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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International

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

APPLICABLE SELF-REGULATION AND LEGISLATION 

 

  • For Content rules in all channels, refer to the earlier Content Section B. The principal source of general international Content rules is the ICC Advertising and Marketing Communications Code, which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
  • The channel rules shown here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth databases; rules for channel-sensitive product sectors such as Alcohol or Gambling can be found under their respective headings on the main website
  • Chapter C of the ICC Code (full Code linked above): Direct Marketing and Digital Marketing Communications
  • General Provisions of the ICC Code will apply: in particular: Art. 9 (Identification); Art. 10 (Identity); Art. 19 ICC Code Data Protection and Privacy; para re consumer rights
  • Directive 2000/31/EC on electronic commerce carries the rules on information to be provided in commercial communications in an e-commerce context; extracts below 
  • Directive 2002/58/EC on privacy and electronic communications carries the rules on privacy/ consent, setting out the prevailing European opt-in regime; extracts below
  • GDPR may apply if processing personal data; check privacy issues with specialist advisors 
  • See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here 

 

General provisions; refer to our earlier Section B or the linked ICC document for full provisions. Of particular relevance below:

 

 

Article 19 ICC Code: Data protection and privacy

 

  • When collecting personal data from individuals, care should be taken to respect and protect their privacy by complying with relevant rules and regulations
 

 

19.1. Collection of data and notice

 

  • When personal data is collected from consumers, it is essential to ensure that the individuals concerned are aware of the purpose of the collection and of any intention to transfer the data to a third party for that third party’s marketing purposes. Third parties do not include agents or others who provide technical) or operational support to the marketer and who do not use or disclose personal data for any other purpose. It is best to inform the individual at the time of collection; when it is not possible to do so this should be done as soon as possible thereafter

 

 

19.2. Use of data

 

Personal data should be:

 

  • collected for specified and legitimate purposes and used only for the purposes specified or other uses compatible with those purposes
  • adequate, relevant and not excessive in relation to the purpose for which they are collected and/or further processed
  • accurate and kept up to date
  • preserved for no longer than is required for the purpose for which the data were collected or further processed

 

 

19.3. Security of processing

 

  • Adequate security measures should be in place, having regard to the sensitivity of the data, in order to prevent unauthorised access to, or disclosure of, the personal data.If the data is transferred to third parties, it should be established that they employ at least an equivalent level of security measures

 

 

19.4. Children’s personal data

 

  • When personal data is collected from individuals known or reasonably believed to be children, guidance should be provided to parents or legal guardians about protecting children’s privacy if feasible
  • Children should be encouraged to obtain a parent’s or responsible adult’s consent before providing personal data via digital interactive media, and reasonable steps should be taken to check that such permission has been given
  • Only as much personal data should be collected as is necessary to enable the child to engage in the featured activity. A parent or legal guardian should be notified and consent obtained where required.
  • Personal data collected from children should not be used to address marketing communications to them, the children’s parents or other family members without the consent of the parent
  • Personal data about individuals known or reasonably believed to be children should only be disclosed to third parties after obtaining consent from a parent or legal guardian or where disclosure is authorised by law. Third parties do not include agents or others who provide technical or operational support to the marketer and who do not use or disclose children’s personal data for any other purpose
  • For additional rules specific to marketing communications to children using digital interactive media, see chapter C, article C7
 
 

19.5. Privacy policy

 

  • Those who collect personal data in connection with marketing communication activities should have a privacy policy, the terms of which should be readily available to consumers, and should provide a clear statement of any collection or processing of data that is taking place, whether it is self-evident or not. General provisions and definitions on advertising and marketing communications In jurisdictions where no privacy legislation currently exists, it is recommended that privacy principles such as those of the ICC Privacy Toolkit4 are adopted and implemented

 

 

19.6. Rights of the consumer

 

  • Appropriate measures should be taken to ensure that consumers understand their rights to e.g.:

 

  • opt out of direct marketing lists
  • opt out of interest-based advertising
  • sign on to general direct preference services
  • require that their personal data not be made available to third parties for their marketing purposes; and
  • rectify incorrect personal data which are held about them

 

  • Where a consumer has clearly expressed a wish not to receive marketing communications using a specific medium, this wish should be respected. Appropriate measures should be put in place to help consumers understand that access to content may be made conditional on the use of data. For additional rules specific to the use of the digital interactive media and consumer rights, see chapter C, article C9

 

 

19.7. Cross-border transactions

 

  • Particular care should be taken to maintain the data protection rights of the consumer when personal data are transferred from the country in which they are collected to another country. When data processing is conducted in another country, reasonable steps should be taken to ensure that adequate security measures are in place and that the data protection principles set out in this code are respected. The use of the ICC model clauses covering agreements between the originator of the marketing list and the processor or user in another country is recommended

 

 

Chapter C of the 2018 ICC Advertising and Marketing Communications Code, Direct Marketing and Digital Marketing Communications, is also applicable. Key clauses are shown under the Online Commercial Communications section, or can be found in the linked Code 

 
 
LEGISLATION

 

Directive 2002/58/EC; Article 13

Unsolicited communications

 

  1. The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent
  2. Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC*, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use
  3. Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation
  4. In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited
  5. Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected

* Repealed; GDPR applies 

 

 

Directive 2000/31/EC: Article 5

 

General information to be provided in an E-commerce context

 

  1. In addition to other information requirements established by Community law, Member States shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information:

 

  1. The name of the service provider
  2. The geographic address at which the service provider is established
  3. The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner
  4. Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register
  5. Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
  6. As concerns the regulated professions

 

- any professional body or similar institution with which the service provider is registered

- the professional title and the Member State where it has been granted

- a reference to the applicable professional rules in the Member State of establishment and the means to access them
 

  1. Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment (29)
  2. In addition to other information requirements established by Community law, Member States shall at least ensure that, where information society services refer to prices, these are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs

 

 

Section 2: Commercial communications

 

Article 6

 

  • Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:

 

  1. The commercial communication shall be clearly identifiable as such
  2. The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable
  3. Promotional offers, such as discounts, premiums and gifts, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously
  4. Promotional competitions or games, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions for participation shall be easily accessible and be presented clearly and unambiguously

 

 

Article 7

Unsolicited commercial communication

 

  1. In addition to other requirements established by Community law, Member States which permit unsolicited commercial communication by electronic mail shall ensure that such commercial communication by a service provider established in their territory shall be identifiable clearly and unambiguously as such as soon as it is received by the recipient
  2. Without prejudice to Directive 97/7/EC and Directive 97/66/EC, Member States shall take measures to ensure that service providers undertaking unsolicited commercial communications by electronic mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves

 

 
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EU guidance documents

 

  • Opinion 5/2004 on unsolicited communications for marketing purposes under article 13 of Directive 2002/58/EC. Adopted on 27 February 2004 (WP 90)
  • Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on unsolicited commercial communications or 'spam'
    http://eur-lex.europa.eu/legal-content/GA/TXT/?uri=celex:52004DC0028 
  • November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here 
  • Opinion 15/2011 on the definition of consent here 
  • May 2020 Guidelines on Consent under Regulation 2016/679 here
 
 
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6. Own Websites & SNS

Sector

 

 

MARKETERS' OWN WEBSITES

 

Including Social Network spaces under their control

 

 

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 blurred online, the definition of advertising is important: the Telemedia Act (DE) 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.

 

 

KEY RULES AND SOURCES 

 

  • Per above context, the rules set out in our earlier Content Section B apply online, except where those identify broadcast advertising
  • The Self-Regulatory codes in English from Deutscher Werberat are here; these do not include specific comparative advertising measures, as in Germany that aspect is covered by legislation/ WBZ (see below)
  • The core legislation and particularly important in Germany is the Unfair Competition Act (EN); see sections 5 and 6 for the Comparative Advertising provisions and Unreasonable Harassment under Section 7 which incorporates Opt-in rules; see Emails/ SMS header for more
  • For other rules such as E-commerce requirements, identification in Vlogging/ Influencer Marketing, or Consent and Information requirements, see the General tab below as the rules apply to all sectors

 

 

 

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General

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 Eprivacy 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
  • 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 Best Practice document: while this is not binding, it’s the best source for understanding exemptions
  • Basic rules 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 in their set of 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 Eprivacy 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)

 

  • The State Media Authorities (ALM) Guidance FAQ Flyer: Advertising in social media DE / EN, extended more valuably by:
  • State Media Authorities: Guidelines for labelling advertising in online media DE / EN. 'This guideline by the Media Authorities contains assistance on the labelling requirements for advertising in social media offerings (e.g. Instagram, Twitter, Facebook, YouTube, TikTok, Twitch, etc.) and other online media such as blogs and podcasts.'
  • 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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International

 

CONTEXT

 

The same principle that applies in paid space also applies in non-paid such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s ‘in remit’, i.e. covered by the rules. Clearly, much of a brand website may not be advertising, but it's important to understand what may 'qualify', and different countries have different definitions. In this international context the most relevant definition is from the ICC Code: ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’. It can be equally important to know what isn't advertising; the single most helpful source of remit issues in this context (that we are aware of) is the EASA Best Practice Recommendation on Digital Marketing Communications, which covers remit under pages 10/11, some of which is set out below. The other aspect of this environment that can be subject to regulatory issues is in 'dialogue' between brand owners and consumers, where Consent and Information requirements may apply; see our General rules sector for specifics

 

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

ICC Advertising and Marketing Communications Code Chapter C Direct Marketing and Digital Marketing Communications

 

Directive 2002/58/EC on privacy and electronic communications

Directive 2000/31/EC on electronic commerce

Directive 2005/29/EC on unfair commercial practices (UCPD)

EASA Best Practice Recommendation on Digital Marketing Communications 2015

 

 
Standard rules

 

  • For Content rules in all channels, refer to the earlier Content Section B. The principal source of general international Content rules is the ICC Advertising and Marketing Communications Code, which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
  • These channel rules are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth-oriented content; rules for channel-sensitive product sectors such as Alcohol or Gambling can be found under their respective headings on the main website

 

 
LEGISLATION
 

Directive 2002/58/EC on Privacy and Electronic communications; Article 13

Unsolicited communications

 
  1. The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent
  2. Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use
  3. Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation
  4. In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited
  5. Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected
 
 
Directive 2000/31/EC on E-commerce: Article 5
General information to be provided
 
  1. In addition to other information requirements established by Community law, Member States shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information
     
(a) The name of the service provider
(b) The geographic address at which the service provider is established
(c) The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner
(d) Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register
(e) Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
(f) As concerns the regulated professions
 
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
 
(g) Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment(29)
  1. In addition to other information requirements established by Community law, Member States shall at least ensure that, where information society services refer to prices, these are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs
 

 

Section 2: Commercial communications
Article 6
 
Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:
 
  1. The commercial communication shall be clearly identifiable as such
  2. The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable
  3. Promotional offers, such as discounts, premiums and gifts, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously
  4. Promotional competitions or games, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions for participation shall be easily accessible and be presented clearly and unambiguously
 
 
Article 7. Unsolicited commercial communication
 
  1. In addition to other requirements established by Community law, Member States which permit unsolicited commercial communication by electronic mail shall ensure that such commercial communication by a service provider established in their territory shall be identifiable clearly and unambiguously as such as soon as it is received by the recipient
  2. Without prejudice to Directive 97/7/EC and Directive 97/66/EC, Member States shall take measures to ensure that service providers undertaking unsolicited commercial communications by electronic mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves
 
 
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
Article 7. Misleading omissions (includes reference to 'Invitation to Purchase')

 

  1. A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise
  2. It shall also be regarded as a misleading omission when, taking account of the matters described in paragraph 1, a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in that paragraph or fails to identify the commercial intent of the commercial practice if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise
  3. Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether information has been omitted
  4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:

 

  1. the main characteristics of the product, to an extent appropriate to the medium and the product
  2. the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
  3. the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably 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 reasonably be calculated in advance, the fact that such additional charges may be payable
  4. the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence
  5. for products and transactions involving a right of withdrawal or cancellation, the existence of such a right

 

5.   Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material

 
 
GUIDANCE

 

EU Guidance/ opinion documents

 

 
 
 
2.2.5. Marketer-owned digital properties
 
As established in the previous sections, all marketing communications, as defined by the ICC Code, fall within the remit of SR systems. It is not, however, always immediately apparent to what extent content on marketer-owned digital properties may constitute marketing communications and thus fall within the remit of the SROs. It should never be automatically assumed that a marketer-owned digital property is a marketing communication in its entirety. The actual content of the marketer-owned digital property must be reviewed to determine that which is marketing communication content and that which is not. For this purpose the following criteria establish whether or not the content, or part of the content of a marketer-owned digital property constitutes a marketing communication:
 
  • Claims (implied, direct, written, spoken and visual) about products or marketers, where the claim is not made in the context of editorial content, annual reports, CSR reports, or similar
  • Where they pertain to the marketing communications and commercial practices covered by the Unfair Commercial Practices Directive (for example, price promotions and invitations to purchase)
  • Third-party UGC and/or viral marketing that has been distributed or endorsed by the marketer
  • Marketing communications that have previously appeared, in the same or comparable form, on other media platforms, including online media platforms

 

 

SOCIAL NETWORK SITES

 

  1. FACEBOOK

                                        

  1. INSTAGRAM 

 

  1. TWITTER:

 

  1. YOUTUBE: advertiser friendly content guidelines here:

 

  1. SNAPCHAT:
  1. GOOGLE +

  1. TIK TOK

 

 

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7. Native Advertising

Sector

 

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 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

 

 

  • Native advertising is like any other advertising in the sense that the Content rules set out in our earlier Section B apply; especially important in this context are the rules on Identification of advertising; those rules apply to all sectors, Comparative advertising included and are therefore set out under the General tab below
  • The core rule related to the above identification issue is from the Unfair Competition Act (EN): 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 (Section 5a and Annex pt. 11) 
  • More broadly, the Self-Regulatory codes in English from Deutscher Werberat are here; these do not include specific Comparative advertising measures which are under the Unfair Competition Act linked above - Sections 5 and 6 for the relevant Comparative Advertising provisions. As well as observing the specific rules, the general rules such as those for taste and decency also apply

 

 

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General

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 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. 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 

 

 

 

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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International

 

 

NATIVE

 

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 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. General rules, i.e. those that apply to all product sectors, are immediately below

 

 
APPLICABLE  SELF-REGULATION LEGISLATION AND GUIDANCE

 

ICC Advertising and Marketing Communications Code 2018

Directive 2005/29/EC on Unfair Commercial Practices (UCPD)

Guidance: ICC Guidance on Native Advertising here

IAB Europe Guidance (as above in intro): How to Comply with EU Rules Applicable to Online Native Advertising (December 2016) here

 

 

Standard rules

 

  • For Content rules in all channels, refer to the earlier Content Section B. The principal source of general international Content rules is the ICC Advertising and Marketing Communications Code, which applies to all channels; the Native technique is no different in that if it's advertising, it's subject to the rules
  • These channel rules are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth publications; rules for channel-sensitive product sectors such as Alcohol or Gambling can be found under their respective headings on the main website

 

 

Self-Regulation: key rules from the ICC Code

 

identification and transparency (Art. 7)

 

  • Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews.

 

identity of the marketer (Art. 8)

 

  • The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called “teaser advertisements”).

 

 

Legislation 

 

Unfair Commercial Practices Directive 2005/29/EC, Annex I

Commercial practices which are in all circumstances considered unfair

 

  • 11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC

  • 22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer

 

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8. Telemarketing

Sector

 

 

Following feedback, we no longer cover Telemarketing 

General

 

 

Following feedback, we no longer cover Telemarketing 

International

 

Following feedback, we no longer cover Telemarketing 

9. Direct Postal Mail

Sector

 

  • The Content rules set out in our earlier Section B apply in Direct Postal Mail
  • Core rules are from the Unfair Competition Act (EN), Sections 5 and 6 for Comparative Advertisng requirements, and the Self-Regulatory Codes (EN) from Deutscher Werberat 
  • For Consent and Information requirements, see the General tab below as these apply to all sectors, Comparative Advertising included; the German regime, as with most member states, is opt-out

 

 

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General

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 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. The ICC Advertising and Marketing Communications Code 2018. 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)

 

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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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International

 

Applicable Self-Regulation and legislation 

 

  • National 'Robinson lists' or opt-out lists
  • The General Data Protection Regulation 2016/679 for the processing of personal data
  • Directive 2005/29/EC on unfair commercial practices (UCPD) 

 

 

Standard rules

 

  • For Content rules in all channels, refer to the earlier Content Section B. The principal source of general international Content rules is the ICC Advertising and Marketing Communications Code, which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
  • The channel rules set out here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth databases; rules for channel-sensitive product sectors such as Alcohol or Gambling can be found under their respective headings on the main website

 

 

Article 19 ICC Code (in part): Data Protection and Privacy applies. Extracts are set out under the earlier Direct Electronic Communications section, or check the ICC Advertising and Marketing Communications Code linked above

 

 

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Legislation

 

As Direct Mail will frequently include offers, when trhat's the case the provisions related to 'Invitations to Purchase' in the Unfair Commercial Practices Directive may apply. Extracts are:

 

4.   In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:

 

  1. the main characteristics of the product, to an extent appropriate to the medium and the product
  2. the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
  3. the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably 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 reasonably be calculated in advance, the fact that such additional charges may be payable
  4. the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence
  5. for products and transactions involving a right of withdrawal or cancellation, the existence of such a right

 

5.   Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material

 

  • In the event of processing personal data (i.e. data that will/ can identify an individual) the required legal basis for processing that data may be subject to the GDPR; check privacy issues with specialist advisors

 

 

Guidance

 

Guidelines on consent under Regulation 2016/679 (May 2020)

 
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10. Event Sponsorship/ Field Marketing

Sector

 

  • 'Comparative advertising', unlike sectors such as Alcohol or Food, would not sponsor an event per se, so these rules address associated material from other sectors which may include comparative claims
  • The Content rules set out in our earlier Section B apply in materials associated with Event sponsorship, except those rules that identify broadcast channels 
  • Core rules are from the Unfair Competiiton Act (EN), Sections 5 and 6 for Comparative Advertisng requirements, and the Self-Regulatory Codes (EN) from Deutscher Werberat 
  • A valuable source of sponsorship rules that are applied internationally is Chapter B of the iCC Advertising and Marketing Communications Code, which underpins much of Self-Regulation worldwide. The rules are set out below under the General tab as they apply to all sectors, Comparative advertising included 

 

 

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General

SECTION C: EVENTS/ SPONSORSHIP

 

 

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 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, 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 Communications
 

 

 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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International

 

 

 

Self-Regulation

 

 

 

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 fulfills 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 that 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 trade- marks 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 an individual’s data are 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 that 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.
  • Any environmental claim made with respect to the sponsorship should conform to the principles set out in Chapter D, Environmental Claims in Marketing communications

 

 

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

 

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11. Sales Promotion

Sector

 

 

  • Comparative advertising does not attract rules that are specific to a sales promotional context; the rules that apply to all forms of comparative advertising and all forms of sales promotion will apply
  • Sales promotional material, therefore, that features comparative advertising will be subject to the rules set out in our earlier Content Section B
  • The key sources of rules are Self-Regulatory from Deutscher Werberat here (scroll down for all their codes in English) and more importantly in this particular context the Unfair Competition Act (EN), Sections 5 and 6
  • The above act also provides a number of sales-promotional rules that apply to all sectors and therefore set out below under the General tab

 

 

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General

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, 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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International

 

 

CONTEXT

 

This website was created to provide international 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, for example, are checked for any provisions that affect SP and included below. Content in SP material is likely to be subject to the rules set out in the earlier Section B.

 

 

APPLICABLE SELF-REGULATION AND LEGISLATION 

 

ICC Advertising and Marketing Communications Code 2018, Chapter A Sales Promotion, Chapter C Direct Marketing

For promotions and contests on social media, refer to Own Websites channel; SNS

Directive 2005/29/EC on Unfair Commercial Practices (UCPD)

Directive 98/6/EC on the Prices of Products offered to Consumers

 

 

SELF-REGULATORY CLAUSES 

 

ICC Code Chapter A Sales Promotion 

 

A1: Principles governing sales promotions

 

  • All sales promotions should deal fairly and honourably with consumers
  • All sales promotions should be so designed and conducted as to meet reasonable consumer expectation associated with the advertising or promotion thereof
  • The administration of sales promotions and the fulfilment of any obligation arising from them should be prompt and efficient
  • The terms and conduct of all sales promotions should be transparent to all participants
  • All sales promotions should be framed in a way that is fair to competitors and other traders in the market
  • No promoters, intermediaries or others involved should do anything likely to bring sales promotions into disrepute

 

 

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

 

 

A3: Presentation

 

A sales promotion should not be presented in a way likely to mislead those to whom it is addressed about its value, nature or the means of participation. Any marketing communication regarding the sales promotion, including activities at the point of sale, should be in strict accordance with the General Provisions of the Code (also set out in Content section)

 

 

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

 

 

A5: Safety and suitability

 

  • Care should be taken to ensure that promotional items, provided they are properly used, do not expose consumers, intermediaries, or any other persons or their property to any harm or danger
  • Promoters should ensure that their promotional activities are consistent with the principles of social responsibilities contained in the General Provisions, and in particular take reasonable steps to prevent unsuitable or inappropriate materials from reaching children

 

 

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

 

The remaining articles of this chapter, A7 to A10 inclusive, are available here. These cover:

 

A7. Presentation to Intermediaries

A8. Particular Obligations of Promoters

A9. Particular Obligations of Intermediaries

A10. Responsibility

 

 

Chapter C Direct Marketing

 

3 relevant clauses extracted

 

 

C3: The offer

 

  • The terms and conditions of any offer made should be transparent to consumers and other participants. The fulfilment of any obligation arising from the offer should be prompt and efficient. All offers involving promotional items should be framed in strict accordance with the rules of Chapter A: Sales Promotion

 

 

C4 : Presentation

 

  • Wherever appropriate, the essential points of the offer should be simply and clearly summarised together in one place. Essential points of the offer may be clearly repeated, but should not be scattered throughout the promotional material
  • When the presentation of an offer also features products not included in the offer, or where additional products need to be purchased to enable the consumer to use the product on offer, this should be made clear in the original offer
  • Consumers should always be informed beforehand of the steps leading to the placing of an order, a purchase, the concluding of a contract or any other commitment. If consumers are required to provide data for this purpose, they should be given an adequate opportunity to check the accuracy of their input before making any commitment
  • Where appropriate, the marketer should respond by accepting or rejecting the consumer’s order
  • Software or other technical devices should not be used to conceal or obscure any material factor, e.g. price and other sales conditions, likely to influence consumers’ decisions. Before making any commitment the consumer should be able to easily access the information needed to understand the exact nature of the product, as well as the purchase price, shipping and other costs of purchase

 

 

C17:  Substitution of products

 

  • If a product becomes unavailable for reasons beyond the control of the marketer or operator, another product may not be supplied in its place unless the consumer is informed that it is a substitute and unless such replacement product has materially the same, or better, characteristics and qualities, and is supplied at the same or a lower price. In such a case, the substitution and the consumer’s right to return the substitute product at the marketer’s expense should be explained to the consumer

 

 

LEGISLATIVE CLAUSES

 

As promotional activity will often include e.g. special pricing measures, we have extracted from the Unfair Commercial Practices Directive 2005/29/EC those clauses from Annex I (practices which are in all circumstances considered unfair) most relevant to promotional scenarios

 

5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)

6. Making an invitation to purchase products at a specified price and then:
 

(a) refusing to show the advertised item to consumers; or

(b) refusing to take orders for it or deliver it within a reasonable time or

(c) demonstrating a defective sample of it, with the intention of promoting a different product (bait and switch)

 

7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice

15. Claiming that the trader is about to cease trading or move premises when he is not

16. Claiming that products are able to facilitate winning in games of chance

19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent

20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item

31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:

 

there is no prize or other equivalent benefit, or

taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost

 

 

 

Directive 98/6/EC on the Prices of Products offered to Consumers (PPD)

 

Article 1

 

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 2

 

For the purposes of this Directive:

 

(a) 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;

(b) unit price shall mean 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 or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products

(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer

(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity

(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity

 

 

Article 3

 

  1. The selling price and the unit price shall be indicated for all products referred to in Article 1, the indication of the unit price being subject to the provisions of Article 5. The unit price need not be indicated if it is identical to the sales price
  2. Member States may decide not to apply paragraph 1 to:

 

— products supplied in the course of the provision of a service

— sales by auction and sales of works of art and antiques

 

  1. For products sold in bulk, only the unit price must be indicated
  2. Any advertisement which mentions the selling price of products referred to in Article 1 shall also indicate the unit price subject to Article 5

 

Article 4

 

  1. The selling price and the unit price must be unambiguous, easily identifiable and clearly legible. Member States may provide that the maximum number of prices to be indicated be limited
  2. The unit price shall refer to a quantity declared in accordance with national and Community provisions

 

Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight

 

Article 5

 

  1. Member States may waive the obligation to indicate the unit price of products for which such indication would not be useful because of the products' nature or purpose or would be liable to create confusion
  2. With a view to implementing paragraph 1, Member States may, in the case of non-food products, establish a list of the products or product categories to which the obligation to indicate the unit price shall remain applicable

 

 

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D. Advice & Clearance

General

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

 

 

 

International

 

The ICAS Global Factbook of Self-Regulatory Organizations 2019

 

EASA (European Advertising Standards Alliance)

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

 

EASA membership

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

 

Link to Best Practice Recommendations

http://www.easa-alliance.org/products-services/publications/best-practice-guidance

 

Appendix 2: The EASA Statement of Common Principles and Operating Standards of Best Practice (May 2002)

http://www.easa-alliance.org/sites/default/files/EASA%20Common%20Principles%20and%20Operating%20Standards%20of%20Best%20Practice.pdf

 

Appendix 3: The EASA Best Practice Self-Regulatory Model (April 2004)

http://www.easa-alliance.org/sites/default/files/EASA%20Best%20Practice%20Self-Regulatory%20Model.pdf

 

EASA Digital Marketing Communications Best Practice Recommendation 

http://www.easa-alliance.org/sites/default/files/EASA%20Best%20Practice%20Recommendation%20on%20Digital%20Marketing%20Communications.pdf

 

EASA Best Practice Recommendation on Online Behavioural Advertising

http://www.easa-alliance.org/sites/default/files/EASA%20Best%20Practice%20Recommendation%20on%20Online%20Behavioural%20Advertising_0.pdf

 

EASA Best Practice Recommendation on Influencer Marketing

https://www.easa-alliance.org/sites/default/files/EASA%20BEST%20PRACTICE%20RECOMMENDATION%20ON%20INFLUENCER%20MARKETING_2020_0.pdf

 

 

 

 

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E. Links

Sector

SECTION E

 

LEGISLATION

 

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 in May 2018. 

http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R0679&from=en

 

 

MACAD

 

Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (codified version). This is the core directive that establishes the platform for rules for comparative advertising in European member states. Key article is No. 4, which sets out that the underlying principle is that comparative advertising may not be misleading under the terms of the definition provided in the Directive article 2 (b) or those in Articles 6 and 7 of Directive 2005/29/EC (see below). The key clause under article 4 is that which states comparative advertising must compare 'goods or services meeting the same needs or intended for the same purpose':

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

 

 

Unfair commercial practices

 

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 of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’): This is the European legislation that most impacts marketing and advertising in Europe. The Directive inter alia sets out provisions relating to misleading and aggressive commercial practices, incorporating marcoms rules for e.g. an invitation to purchase, and a 'blacklist' - commercial practices which are in all circumstances considered unfair' - under Annex I:

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

 

 

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. UWG also implements article 13 of the E-Privacy Directive 2002/58/EC on unsolicited commercial communications. Comparative advertising rules are under Sections 5 and 6 and Section 4 carries Protection of Competitors.

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

 

 

Channel legislation

 

Online

 

Telemedia Act (Telemediengesetz or TMG). The TMG implements E-commerce Directive 2000/31/EC. Telemedia means ‘all electronic information and communications services, to the extent that they are not telecommunications services …or broadcasting’ (S. 1 (1) TMG/ also S. 2.1 RStV). 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:

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

http://www.g-regs.com/downloads/DE_TelemediaActTMG_InDate2017.pdf (EN key clauses)

 

 

Broadcasting

 

Interstate Treaty on Broadcasting and Telemedia (Rundfunkstaatsvertrag RStV); from 31/08/1991. The treaty implements the Audiovisual Media Services Directive 2010/13/EC and sets down the rules for programming, advertising, teleshopping, product placement and sponsorship. Advertising on video-on-demand (VOD) systems is permitted for commercial broadcasters and regulated under the telemedia section of RStV (Art. 58 (3)). Online videos may well be subject to RStV (in the case of YouTubers/ Bloggers; videos on magazine and newspaper websites which are independent and not connected to editorial content), meaning that the requirements on advertising and sponsoring under broadcasting law will apply:

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

https://www.die-medienanstalten.de/fileadmin/user_upload/Rechtsgrundlagen/Gesetze_Staatsvertraege/RStV_22_english_version_clean.pdf (EN)

 

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

 

 

Social media guidelines

 

FAQ Flyer: Advertising in social media. In October 2016 ALM, the state media authorities published their updated issue of FAQs on advertising in social media channels. #ad, earlier removed in light of a legal case, was re-installed in a later version (linked below) as one of the labelling options. More recent and helpful in executional terms is the flyer referenced in the entry below

https://www.die-medienanstalten.de/fileadmin/user_upload/Pressemitteilungen/KEK/Dokumente/FAQ-Flyer_Werbung_Social_Media_02.pdf (DE)

https://www.g-regs.com/downloads/DEFAQ_Flyer_SocialMediaAdvertisingENc.pdf (EN)

 

Guideline of the Media Authorities. Advertising Identification of Social Media Offers (2019). ‘This guideline is a continuation of the previous FAQs of the Media Authorities. It contains basic help and regulations on the identification and separation obligations for advertising on social media platforms such as Instagram, Twitter, Facebook, YouTube, Twitch, and similar providers as well as other Internet pages. It focuses on questions of media law, but does not exclude competition law.’

https://www.die-medienanstalten.de/fileadmin/user_upload/Rechtsgrundlagen/Richtlinien_Leitfaeden/Guideline_advertising_identification_social_media_offers_2019.pdf

 

Leitfaden der Medienanstalten Werbekennzeichnung bei Social-Media-Angeboten

https://www.die-medienanstalten.de/fileadmin/user_upload/Rechtsgrundlagen/Richtlinien_Leitfaeden/Leitfaden_Medienanstalten_Werbekennzeichnung_Social_Media.pdf

 

 

 

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

 

  • 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
    https://www.werberat.de/werbekodex/kinder-jugendliche
  • 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

 

 

ICC

 

ICC Advertising and Marketing Communications Code 2018

https://cms.iccwbo.org/content/uploads/sites/3/2018/09/icc-advertising-and-marketing-communications-code-int.pdf

 

Chapter A: Sales Promotion

Chapter B : Sponsorship

Chapter C: Direct Marketing and Digital Marketing Communications

Chapter D: Environmental Claims in Marketing Communications

 

 

 

........................................................................................

General

SECTION E SOURCES

 

 

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.

Four more recent and 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
EU guidance:
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016SC0163 

 

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. While this directive does not require very significant changes as far as most commercial communication is concerned, it does set out some changes to information requirements under the UCPD, to pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour and to price reduction information under Directive 98/6/EC. Directive 2019/2161 also includes important information requirements relating to e.g. search rankings and consumer reviews which do not directly impact this database. Provisions are supposed to be transposed by November 2021 and in force in member states by May 2022. See transpositions 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 2022.

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

 

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. 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 (4 November 2020)

 

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://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CONSIL:ST_9931_2020_INIT&from=EN

 

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

 

 

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 hugely impact the content of commercial communications. There are implications for Influencer messaging, however, for 'invitations to purchase' and for the way in which brands are presented multinationally if product composition differs materially. 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/

 

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.

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.die-medienanstalten.de/fileadmin/user_upload/Rechtsgrundlagen/Richtlinien_Leitfaeden/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

 

FAQ Flyer: Advertising in social media. In October 2016 ALM, the state media authorities published their updated issue of FAQs on advertising in social media channels. #ad, earlier removed in light of a legal case, was re-installed in a later version (linked below) as one of the labelling options. More recent and helpful in executional terms is the flyer referenced in the entry below:

The Media Authorities. Guidelines for labelling advertising in online media (June 2021):

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

https://www.die-medienanstalten.de/fileadmin/user_upload/Rechtsgrundlagen/Richtlinien_Leitfaeden/ua_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 enters 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.

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

 

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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

 

  • 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
    https://www.werberat.de/werbekodex/kinder-jugendliche
  • 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 Recommendation on Online Behavioural Advertising is here:

http://www.easa-alliance.org/sites/default/files/EASA Best Practice Recommendation on Online Behavioural Advertising_0.pdf

And on Digital Marketing Communications here:

http://www.easa-alliance.org/sites/default/files/EASA%20Best%20Practice%20Recommendation%20on%20Digital%20Marketing%20Communications.pdf

Influencer Marketing

https://www.easa-alliance.org/sites/default/files/EASA%20BEST%20PRACTICE%20RECOMMENDATION%20ON%20INFLUENCER%20MARKETING_2020_0.pdf

 

 

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

 

ESA

 

The European Sponsorship Association is here:

www.sponsorship.org

 

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EU GUIDANCE

 

Environmental claims

 

1. Compliance Criteria on Environmental Claims. Multi-stakeholder advice to support the implementation of the Unfair Commercial Practices Directive (UCPD). A multi-stakeholder group on environmental claims (MDEC), coordinated by the European Commission and composed of representatives of national authorities, European business organisations, consumer associations and environmental NGOs, provided input to an EU-wide ‘Consumer Market Study on Environmental Claims for Non-Food Products’. Following the findings of this study, the group developed ‘Compliance Criteria on Environmental Claims’, which reflects its common understanding on the application of the UCPD in this area. This work is intended to support traders and enforcement authorities when applying the UCPD in relation to environmental claims. This might be supplemented by the European Commission Guidance on Making and Assessing Environmental Claims, published in 2000 EN.

2. EU Commission Guidance on the application of Directive 2005/29/EC (UCPD) on Unfair Commercial Practices. 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 (Section 5.1) has been updated following the publishing of the Compliance Criteria on Environmental Claims

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016SC0163 

3. EU Commission Guidelines for making and assessing Environmental Claims (Dec 2000). These guidelines are consistent with the international standard ISO 14021-1999 and include references to environmental claims which should be deemed misleading:

http://ec.europa.eu/consumers/archive/cons_safe/news/green/guidelines_en.pdf

 

 

 

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International

SECTION E SOURCES

 

 

SELF-REGULATION 
 

ICC

 

 ICC Advertising and Marketing Communication Practice Code 2018. In September 2018, the International Chamber of Commerce introduced the newly revised Advertising and Marketing Communication Code (the Code). From the website:  'This tenth edition of the Code covers all marketing communications, regardless of form, format or medium. Marketing communications are to be understood in a broad sense (see definitions) but obviously do not extend indiscriminately to every type of corporate communication. For instance, the Code may not apply to corporate public affairs messages in press releases and other media statements, or to information in annual reports and the like, or information required to be included on product labels. Likewise, statements on matters of public policy fall outside the scope of this code. Corporate Social Responsibility (CSR) programmes as such are not covered by the Code; however, when a CSR statement appears as a claim in a marketing communication, the Code is applicable. The Code also applies to marketing communication elements of a CSR programme, for example where a sponsorship is included in such a programme. Finally, communications whose primary purpose is entertaining or educational and not commercial, like the content of television programmes, films, books, magazines or video games, are not intended to be covered by this code.' Platform:

https://iccwbo.org/publication/icc-advertising-and-marketing-communications-code/

Downloaded:

https://cms.iccwbo.org/content/uploads/sites/3/2018/09/icc-advertising-and-marketing-communications-code-int.pdf

 

 

Additional guides and frameworks


ICC Guide for Responsible Mobile Marketing Communications

Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications

ICC Framework for Responsible Food and Beverage Marketing Communication

 

 

ICC guidance documents

 

 

ICC Guidance on Native Advertising (May 2015). 

https://iccwbo.org/content/uploads/sites/3/2015/05/ICC-Guidance-on-Native-Advertising.pdf

 

ICC Framework for Responsible Marketing Communications of Alcohol. This Framework helps to interpret the fundamental global standards of the ICC Code to offer more specific guidance on issues unique to the alcohol sector emphasizing the key principles that marketing communications be honest, legal, decent and truthful and prepared with a due regard for social responsibility.  It will also serve as the basis for developing self-regulatory rules for marketing alcohol where these do not exist. Countries seeking to establish or enhance marketing self-regulation codes for alcohol can look to the ICC principles as the baseline global standards and use the interpretation of this Framework easily to adapt them into national codes according to varying cultures and contexts.

https://iccwbo.org/content/uploads/sites/3/2019/08/icc-framework-for-responsible-alcohol-marketing-communications-2019.pdf

 

 

ICC toolkits

 

 

 

IAB Europe

 

IAB (Interactive Advertising Bureau) Europe: Its mission is to 'protect, prove, promote and professionalise' Europe's online advertising, media, research and analytics industries. Together with its members, companies and national trade associations, IAB Europe represents over 5,500 organisations with national membership including 27 National IABs and partner associations in Europe. 

http://www.iabeurope.eu/

'The Gold Standard is open to all IAB UK members who buy and sell digital media. It improves the digital advertising experience, helps compliance with the GDPR and ePrivacy law, tackles ad fraud and upholds brand safety':

https://www.iabuk.com/goldstandard

IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era and in July 2021 the Guide to Contextual Advertising 

 

 

EASA: European Advertising Standards Alliance

 
'EASA has a network of 40 organisations representing 27 advertising standards bodies (also called self-regulatory organisations) from Europe and 13 organisations representing the advertising ecosystem (the advertisers, agencies and the media). EASA's role is to set out high operational standards for advertising self-regulatory systems, as set out in the Best Practice Model and EASA's Charter. EASA also provides a space for the advertising ecosystem to work together at European and international level to address common challenges and make sure advertising standards are futureproof.' EASA’s membership consists of 38 SROs from Europe and beyond, and 16 advertising industry associations, including advertisers, agencies and the media. 

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

 

Best Practice Recommendation on Digital Marketing Communications (updated 2015): EASA revised its Best Practice Recommendation (BPR) on Digital Marketing Communications in 2015 to ensure advertising standards remain effective and relevant when it comes to 'the ever-changing digital landscape and interactive marketing techniques'. Emphasis is placed on the need for all marketing communications to be easily identifiable for consumers, no matter where or how they are displayed: 

http://www.easa-alliance.org/sites/default/files/EASA%20Best%20Practice%20Recommendation%20on%20Digital%20Marketing%20Communications.pdf

 

EASA Best Practice Recommendation on OBA (Revised Oct. 2016): provides for a pan-european, industry-wide self-regulatory standard for online behavioural advertising. The Mobile Addendum in 2016 extended the types of data relevant to OBA Self-Regulation, to include cross-application data, location data, and personal device data. The BPR incorporates (in sections 2 and 3) and complements IAB Europe’s self-regulatory Framework for OBA:

http://www.easa-alliance.org/products-services/publications/best-practice-guidance 

 

EASA Best Practice Recommendation on Influencer Marketing 2018. From the document: The EASA Best Practice Recommendation on Influencer Marketing aims to look at the key elements of influencer marketing techniques and assist SROs in creating their own national guidance by showcasing already existing national guidance on this topic across the SR network5 and elaborating the different elements a guidance should address and define. EASA recognises that, subject to local parameters SROs may vary in their national practices and choose to go beyond what is suggested in this document or design and implement alternative strategies and guidelines to ensure that influencer marketing abides by the national advertising codes and is honest, decent and truthful and can be thus trusted by consumers.

https://www.easa-alliance.org/sites/default/files/EASA%20BEST%20PRACTICE%20RECOMMENDATION%20ON%20INFLUENCER%20MARKETING_2020_0.pdf

 

 

The European Interactive Digital Advertising Alliance (EDAA)

 

The EDAA has been established by a cross-industry coalition of European-level associations  with an interest in delivering a responsible European Self-Regulatory Programme for OBA in the form of pan-European standards  The EDAA essentially administers this programme; their principal purpose is to licence the OBA Icon to companies. It is also responsible for integrating businesses on the Consumer Choice platform - www.youronlinechoices.eu and ensuring credible compliance and enforcement procedures are in place through EDAA-approved Certification Providers who deliver a ‘Trust Seal’. It also coordinates closely with EASA and national SRO’s for consumer complaint handling

 

 

FEDMA

 

FEDMA (Federation of European Direct and Interactive Marketing) is a Brussels-based, pan-European association representing twenty-one national DMA’s and corporate members 
https://www.fedma.org/

 

 

THE EU PLEDGE 

 

The EU Pledge, enhanced July 2021 effective January 2022, is a voluntary initiative by leading Food and Beverage companies, accounting for over 80% of food and soft drink advertising expenditure in the EU, to change food and soft drink advertising to children under the age of thirteen in the European Union. It consists of three main commitments:

 

 

The EU Pledge Implementation guidance, in detail and by medium, is here. The Pledge is consistent with the International Food & Beverage Alliance (IFBA)’s 2021 Global Responsible Marketing policy

 

WFA

https://wfanet.org/about-wfa/who-we-are

 

‘WFA is the only global organisation representing the common interests of marketers. It is the voice of marketers worldwide, representing 90% of global marketing communications spend – roughly US$900 billion per annum. WFA champions more effective and sustainable marketing communications.’

 

Planet Pledge is a CMO-led framework designed to galvanise action from marketers within our membership to promote and reinforce attitudes and behaviours which will help the world meet the challenges laid out in the UN SDGs (Sustainable development goals).

https://wfanet.org/leadership/planet-pledge

 

The Responsible Marketing Pact (RMP) aims to reduce minors’ exposure to alcohol marketing, limit the appeal of alcohol marketing to minors, and strive to ensure minors’ social media experience is free from alcohol ads.

 

 

EUROPEAN LEGISLATION

 

Channel Regulations and Directives 

 

Regulation 2016/679 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. The General Data Protection Regulation (GDPR) came into force on May 25 2018, and is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018

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

 

Article 29 Working Party/ EDPB

 

The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Personal Data Protection Directive). It has an advisory status and acts independently of the European Commission. 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.

 

 

 

 

Key Directives in marketing communications

 

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

 

 

E-privacy Regulation draft (4 November 2020)

 

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://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CONSIL:ST_9931_2020_INIT&from=EN

 

 

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 to be provided by the ‘service provider’, which information should be made ‘easily, directly and permanently accessible to the recipients of the service’. The Directive sets out the information requirements for commercial communications which are part of, or constitute, an information society service under article 6.

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

 

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 below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006

 

 

Commercial practices 

 

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 European legislation that most impacts marketing and advertising in Europe. 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
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016SC0163 

 

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. While this directive does not require very significant changes as far as most commercial communication is concerned, it does set out some important new changes to information requirements under the UCPD, to pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behavior and to price reduction information under Directive 98/6/EC. Directive 2019/2161 also includes important information requirements relating to e.g. search rankings and consumer reviews which do not directly impact this database. Provisions are supposed to be transposed by November 2021 and in force in member states by May 2022.

https://eur-lex.europa.eu/eli/dir/2019/2161/oj

 

 

Comparative advertising

 

Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (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. 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

 

 

Food Regulations

 

EU Regulation 1924/2006 on nutrition and health claims made on foods. The annex to the Regulation contains the nutritional claims and the conditions under which they can be made for individual products. More information on the Regulation is here, and the Regulation itself is found in full from the link below:

http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02006R1924-20121129&from=EN

 

Regulation 432/2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health. This Regulation carries an updated annex with the complete list of approved health (as opposed to nutrition) claims and their conditions of use:

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32012R0432

 

Regulation 1169/2011 on the provision of food information to consumers. While this Regulation is largely to do with labelling, it also incorporates a number of broad requirements for advertising, largely to do with misleadingness, set out under Article 7:

http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32011R1169&from=EN

 

​Regulation 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control:

eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32013R0609

 

Audiovisual media 

 

AVMS Directive (incorporating some alcohol rules). 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). Article 9 for General rules, 22 for Alcohol rules. Consolidated version following amends of Directive 2018/1808:

 

 

 

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