Germany
Updates
New Food code (EN) May 2021
JuSchG May 2021
Links checked September 2021
Unicef playbook October 2021
Content policies for YouTube Kids Dec 2021
Ad identification guidelines (EN) May 2022
EC 5 key principles June 2022
Who influences whom? Children and advertising
SKW Schwarz/ Lex September 2022
Links refreshed December 2022
DE minister calls for 'junk food' ban Feb 2023
Above from Guardian newspaper UK
Reviewed November 2023; 2 links renewed
All DW links renewed 14/12/23
New ICC Code September 19, 2024
Above has chapter on children and teens
Some other links fixed October 14, 2024
Commission's call for evidence on DSA minors protection guidelines; closed 30th Sept 2024
EASA on the above and two calls for tender August 8, 2024
Google's legislative framework to protect children online. October 2023
From the EC/ CPC 5 key principles of fair advertising to children. Commentary from Covington & Burling here June 23, 2022. The principles are not legally binding, but obviously important.
The new Strategy for a better internet for children (BIK+ strategy) was adopted on 11 May 2022 by the European Commission. Press release here, full text of the Communication here.
CONTEXT AND SCOPE
Clearly, children are protected from sectors that they are not permitted to use, such as alcohol, or gambling; the marcoms rules for such sectors are separately available from the Wikiregs home page. So these pages are for all advertisers, as the DW Children’s Code applies across the board, and especially for those sectors that a) are used by children legitimately and b) where there are no particular category rules that prohibit communications to children. In other words, if you can sell your product to children, or children use it, can you communicate to them and, if so, what are the German rules?
SELF-REGULATION
The key regulations that affect the sensitive issue of marketing communications to children are from The Children’s Code (EN; March 2017) from Deutscher Werberat (DW), one of two Self-Regulatory Organisations (SROs) in Germany. These rules define a child as under 12 and a ‘teen’ / adolescent as ‘at least 12 but under 18’. The DW also publish a brief guide to the Children's Code, here in German and translated in our following content section B. Also relevant is the June 2021 Deutscher Werberat Code of Conduct on Commercial Communication for Foods and Beverages (EN), which is particularly focused on children, defined in this context as under 14 years old. Rules are set out in full under the Food category on the home page of this website.
LEGISLATION
Protection of Young Persons Act, or Youth Protection Act
Jugendschutzgesetz (JuSchG)
https://www.gesetze-im-internet.de/juschg/BJNR273000002.html (DE)
The German Bundestag (Federal Parliament) passed the law on the reform of youth protection in the media in April 2021. The act deals largely with protection of children and young people in the media by restricting access to products, media and venues considered to be inappropriate. Commercial communications are not core, but this is a culturally significant piece of legislation. Advertising is restricted in the context of film events under Section 3, article 11. ‘Media harmful to minors’ may not be advertised where they might be seen / accessed by minors (15).
Unfair competition
The Law Against Unfair Competition Gesetz gegen den unlauteren Wettbewerb (UWG) DE / EN is the principal law regulating advertising activities, implementing the Unfair Commercial Practices Directive (UCPD) 2005/29/EC and the Misleading and Comparative Advertising Directive (MACAD) 2006/114/EC. The law applies to all media and to B2B and B2C. Annex I of the UWG lists 31 commercial practices which are to be regarded as ‘unfair under any circumstances’ - the so-called ‘Blacklist’. Point 28 of those provides: ‘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.’ In terms of its application to advertising, the law is 'managed' by the second of the two German SROs, the Centre for Protection against Unfair Competition Wettbewerbszentrale (WBZ) which is statutorily authorised to initiate legal action against those who infringe competition laws.
Channel
The German constitution places a high priority on the protection of minors and the regulatory regime in commercial communications reflects that context. The Interstate Treaty on the Protection of Minors (Jugendmedienschutz-Staatsvertrag, JMStV) DE 2021 sets down rules for the providers of internet and broadcasting services; article 6 (EN; as amended 2020, no change versus DE 2021) covers the protection of minors Definition child up to 14, young person 14 to 17 inc. in advertising and teleshopping, implementing article 9g of the AVMS Directive 2010/13/EU, as amended. Also relevant is article 4 DE / EN of the State Media Authorities’ Guidelines for the legal protection of children and young people - details in our channel section C under TV and Radio. Finally, ‘Children's programmes must not be interrupted by advertising or teleshopping spots’ (from article 9 of the State Media Treaty (MStV; DE / EN), DE version in force June 2022, EN trans from 2020 no change to art. 9). And even more finally, in the context of Influencer Marketing, this September 2022 article Who "influences" whom? Children and advertising from SKW Schwarz/ Lex raises some issues both on the influenced child and the 'child influencer.'
GDPR and children
Privacy issues should be reviewed with specialist advisors
Rules from the GDPR on children’s data are set out under Online Commercial Communications in our channel section C; a brief extract from the EC’s Data Protection pages provides that: ‘your company/organisation can only process a child’s personal data on grounds of consent with the explicit consent of their parent or guardian up to a certain age’. Best guideline for consent is from the European Data Protection Board Guidelines 05/2020 on consent under Regulation 2016/679 (May 2020); see Section 7.1 for children - specific guidance
TOYS AND VIDEOGAMES
There Is no formal Toy code from the German authorities, though obviously toy advertising should observe the children’s code linked earlier, and the general rules under the General tab below. The ICTI’s (International Council of Toy Industries) Guiding Principles for Advertising and Marketing Communication to Children is here, and set out in the following content section B. The German Toy Industry Association does not appear to publish an advertising code; they are affiliated with ICTI in other areas, however. The PEGI (Pan European Game Information) Code (Art.11) states the age rating symbol must be shown in videogame advertising and provides some other rules shown in our following content section B. The code is binding only on signatories.
GENERAL RULES
All advertising, that for children included, should observe not only the rules specific to their category/ audience, but also those rules that apply to all product categories and target markets, i.e. the ‘general' rules. These can be found under the General tab below. In (very) brief, the German system has two Self-Regulatory Organisations: the German Advertising Standards Council Deutscher Werberat (DW), codes of conduct here EN / DE; and the Centre for protection against unfair competition Wettbewerbszentrale (WBZ), referenced above. The DW codes apply to all media, and there are some media-specific provisions, including online per this statement in 2011 EN. In the context of general advertising rules, relevant DW codes include:
Basic rules for commercial communications (Oct 2007) EN / DE
Code Against Personal Denigration and Discrimination (July 2014) EN / DE; and
Advertising with celebrities EN / DE.
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 2018 ICC Code is here in English and here in German, the latter obviously applicable in this context. The September 2024 code carries a new Chapter E on Children and Teens.
Updates since March 2023 (slimmed)
Wettbewerbszentrale and new UWG rules (DE)
Influencer marketing: enforcement time
Reed Smith LLP/ Lex March 6, 2023
Courts disagree on 'climate-neutral' (DE)
Heuking Kühn Lüer Wojtek July 19, 2023
Also on climate neutral Harting/ Lex July 17, 2023 (EN)
Carbon neutrality and environmental neutrality (DE)
Case law report Taylor Wessing August 2, 2023
Q&A: online advertising in Germany
SKW Schwarz September 29, 2023
Sustainability in advertising (DE) CMS Nov 29, 2023
Taylor Wessing again; more from the Karlsruhe court
Generative AI/ GDPR/ EDPS (DE) Noerr June 5
ECJ Biocides & 'skin-friendly' (DE) June 20, 2024
New case law on advertising online reviews (EN)
Reed Smith LLP/ Lex August 7, 2024
Bardehle Pagenberg on the 'climate neutral' case
DLA Piper Environmental Advertising Claims Guide
Above from August 7, 2024 includes Germany
The German govt draft CSRD implementation act
Squire Patton Boggs August 19, 2024
Legal500's Advertising & Marketing Guide
October 11, 2024. Germany chapter linked
Consent Management Ordinance Heuking Sept 24, 2024
Federal Court of Justice and 'climate neutral' (DE)
From Sustainable Views EN commentary June 28, 2024
Wettbewerbszentrale, who brought the action, here (DE)
DDG lays the foundation for the EU DSA in Germany
Taylor Wessing May 14, 2024 (EN)
Auf Wiedersehen Werbung mit Klimaneutralität? Taylor Wessing Feb 9, 2024
SELF-REGULATION
The German system has two self-regulatory organisations: the German Advertising Standards Council Deutscher Werberat (DW), which deals with issues of social responsibility, taste and decency – codes of conduct here EN / DE; and the Centre for Protection against Unfair Competition Wettbewerbszentrale (WBZ), which is statutorily authorised to initiate legal action against those who infringe or appear to infringe competition laws. Both of these SROs are affiliated to the German Advertising Federation (Zentralverband tier deutschen Werbewirtschaft ZAW), which represents the whole advertising industry. The DW codes apply to all media, and there are some media-specific provisions, including online per this statement in 2011 DE / EN. In the context of these general advertising rules, relevant DW codes include:
General principles on commercial communications (Oct 2007) EN / DE
Code against personal denigration and discrimination (July 2014) EN / DE; and
Advertising with celebrities EN / DE
The Children’s Code (EN), (DE) set out under the children sector on our home page
A helpful general piece from DLA Piper March 2021: Prohibited and controlled advertising in Germany.
Denigration and discrimination
A significant addition in June 2019 to DW regulation, related to and expanding on the code linked above, is in the form of a guidance 'flyer'. Using some (truly terrible) example 'advertising', this addresses issues of racism, discrimination against and denigration of women and men, stereotyping, nudity and sex in advertising, objectification and ’ageism’. The German version, obviously applicable in this context, is here and our (unofficial and non-binding) translation is here.
The ICC
In making rulings, Deutscher Werberat include the ICC’s Advertising and Marketing Communications Code in its set of considerations, the others being applicable law and their own codes of practice. The ICC Code is here in English (2018 code; 2024 code here) and here (2018 code) in German, the latter obviously applicable. Extracts are in our content section B that follows.
UNFAIR COMPETITION/ COMMERCIAL PRACTICES
The Law Against Unfair Competition Gesetz gegen den unlauteren Wettbewerb (UWG) DE / EN (key sections 5-7 and the annex linked below; translation does not include amends referenced in para below) is the principal law regulating advertising activities, implementing the Unfair Commercial Practices Directive (UCPD) 2005/29/EC and the Misleading and Comparative Advertising Directive 2006/114/EC. The law applies to all media and to B2B and B2C. Annex I of the UWG lists 31 commercial practices that are regarded as ‘unfair under any circumstances’: the so-called ‘Blacklist’. This is a significant force in German advertising regulation; the Wettbewerbszentrale (WBZ, see above) is statutorily authorised to initiate legal action against infringement of competition laws, a relatively unusual arrangement in European advertising regulation. A March 2021 article from DLA Piper via Lexology, Misleading advertising practices in Germany (EN), sets out the rules. Q&A: online advertising in Germany from SKW Schwarz/ Lex September 29, 2023, as the title suggests, is more specific.
The UWG was amended by the Law to strengthen consumer protection in competition and trade law (DE) of August 17, 2021; this act inter alia transposes Directive 2019/2161/EU, which covers significant commercial territory such as price reductions (see below under Pricing) and the validity of consumer reviews and search rankings but does not hugely impact the content of commercial communications. There are, however, implications for Influencer messaging, for 'invitations to purchase' and for the way in which brands are presented multinationally if product composition differs materially. More here in the form of an explanatory GRS note in English. The law came into force May 28, 2022. The Centre for Protection against Unfair Competition Wettbewerbszentrale (WBZ), referenced above, has brought several actions (DE) against alleged breaches of these new rules, especially those relating to search rankings information.
ENVIRONMENTAL CLAIMS
Germany's regulation of environmental claims is relatively unusual in Europe in as much as it is the statutory versus self-regulatory process that is more regularly deployed.
There's no lengthy environmental code as in the UK and France, for example, but the Wettbewerbszentrale are very active in this territory and the courts similarly and consequently.
Claims are assessed against the UWG (see above)
Federal Court of Justice and 'climate neutral' (DE)
From Sustainable Views EN commentary June 28, 2024
ESG emphasis questions preferential treatment of sustainability deals (EN)
Global Competition Review June 7, 2024
Courts disagree on 'climate-neutral' (DE)
Heuking Kühn Lüer Wojtek July 19, 2023
German case law on the term “climate neutral” (klimaneutral), “environmentally neutral” (umweltneutral)
CMS Germany/ Lex September 5, 2023. A comprehensive review of some definitions and cases
Green, Greener, Greenwashing - Green Claims Marketing in the EU and Germany Morrison & Foerster LLP/ Lex. December 2022
Green Advertising in Germany - making carbon neutral claims. Taylor Wessing/ Lex April 3, 2023
In Germany, competitors and consumer associations may challenge environmental claims as unfair commercial practices, which are therefore assessed against the UWG (see above). As that act is derived from European UCPD legislation, Commission Guidance (December 2021) is obviously relevant: section 4.1.1. Environmental claims. Industry self-regulation is in the form of chapter D of the ICC Code linked earlier and here, and the ICC Framework for Responsible Environmental Marketing Communications (November 2021). See environmental claims in our content section B below for full information. May 19, 2021 WBZ objected to various advertisements in connection with the statement “climate neutral” as misleading and non-transparent; information here (DE). A May 2021 article from CMS Germany/ Lex Sustainability, Advertising and Greenwashing discusses some of the broader claims and their legal compliance and the December 2021 piece Beware of advertising with 'climate-neutral' and 'CO2 reduced' from the same source covers the background to a case that the WBZ brought re climate neutral. This August 2022 Bird&Bird piece Advertising “climate-neutral” production conditions reports on an appeal heard by by the Higher Regional Court of Schleswig, which overturned an earlier judgement that a climate-neutral claim was misleading. And Trend Nachhaltigkeit - Werbung mit Green Claims from Harting November 2022 (EN) rounds up the legal context, references some cases and sets out EU developments. ICLG's Consumer Protection Laws and Regulations from April 2023 explains how various jurisdictions, Germany included, apply consumer protection law to environmental claims.
Internationally, the WFA launched their Planet Pledge in April 2021 and Global Guidance on Environmental Claims April 2022; Green Trademarks vs. Green Claims Directive - Droht „Klimamarken“ die Löschung? (DE) SKW Schwarz july 25, 2024 covers the EU ground, focusing on green trademarks/ certification. DLA Piper's August 2024 Environmental Advertising Claims Guide covers all key markets including Germany.
CHILDREN AND YOUNG PEOPLE
The DW publish The Children’s Code (EN), which is set out in full under the children sector on the home page of this website. The Interstate Treaty on the Protection of Minors (Jugendmedienschutz-Staatsvertrag, JMStV; DE, as amended 2020 to incorporate e.g. video-sharing platforms) sets down rules for the providers of both telemedia and broadcasting services; article 6 (EN, as amended 2020) relates largely to commercial communications' content rules for the protection of minors, and is transposed from the AVMS Directive 2010/13/EU and its amending Directive 2018/1808. Also relevant is article 4 DE / EN of the Youth Protection Guidelines (Jugendschutzrichtlinien JuSchRiL) which substantiate/ extend the legal requirements of JMStV. As far as we can establish this has not been amended in light of revisions to the media acts and treaties. A separate ‘children’ category devoted entirely to rules for marcoms aimed at children, per above, is on the home page of this website.
CHANNEL RULES
There's a helpul and comprehensive Media Regulatory Update Series courtesy of Baker McKenzie/Lexology here.
This is largely about, however, consumer protection measures not directly related to marketing communications.
Q&A: online advertising in Germany from SKW Schwarz Rechtsanwälte/ Lex September 2023 is more specific to advertising.
Influencer marketing
Influencer marketing: enforcement time. Reed Smith LLP/ Lex March 6, 2023
Do German corporate influencers have to label their posts as advertising? SKW Schwarz/ Lex February 20, 2023
A high profile case in April 2019 involved Cathy Hummels, who won an action brought by the Social Advertising Association (VSW) on unlabelled posts is interesting because the court decided that there was no proof she had been paid, albeit they also stated the case was specific to this influencer. In January 2019, Wettbewerbszentrale published updated guidelines for Influencer Marketing (DE). Helpful blog on recent case law here from the International Trademark Association, and a thorough and valuable review from Hogan Lovells International LLP here. A significant development is the May 2022 flyer 'Labelling of advertising in online media' (DE / EN) from the state media authorities; press release here (DE). This distinguishes by medium and separates video and audio (for podcasts). Further significant development is the September 2021 German Federal Court of Justice decision outlined by Hogan Lovells, suggesting a very specific case-by-case approach by the courts. This November 2021 article from the World Trademark Review also via Lexology covers similar ground and refers to the UWG amendment referenced above. Finally, ERGA's 2021 Analysis and recommendations concerning the regulation of vloggers, also referenced below. Not quite finally: this Labelling as advertising in social media posts is an important piece from Hogan Lovells/ Lex July 27, 2022, explaining a judgement of the higher District Court of Frankfurt against an influencer and third party in the context of the amended version of the UWG and, for good measure, the State Media Treaty and the Telemedia Act. Definitely finally: DLA Piper's Influencer Marketing Guide of April 2022, which covers a number of jurisdictions including Germany, is here.
Audiovisual media
The State Media Treaty (MStV; DE / EN), in force November 2020 and replacing the Interstate Treaty on Broadcasting (RStV), carries the provisions of the AVMS Directive 2010/13/EU and its amending Directive 2018/1808. The treaty sets out the rules for commercial communications - including teleshopping, sponsorship and product placement - in the expanded scope, which now incorporates e.g. online audio and video libraries, search engines, streaming providers and social networks. Rules are set out in the following sections B and C; the relevant Directive content amends for commercial communications are shown here and are not especially significant, though there are implications for Food advertising self-regulation in particular (see home page of this website for that sector). This development reflects the digitisation of European media regulation and has most impact on platforms (versus advertisers), in terms of child protection, search results management etc. There's a helpful blog explaining the structures from DLA Piper here and ERGA's 2021 Analysis and recommendations concerning the regulation of vloggers is the definitive regulators' view on whether vlogging is in scope. The Telemedia act referenced below also receives some of the directive's amends.
Online privacy and information
Consent Management Ordinance Heuking Sept 24, 2024
Changes To The BDSG And TTDSG. Heuking June 27, 2024
EDPB data protection guide for small businesses in FR & DE
EDPB May 17, 2024
Privacy Sandbox news and updates
In May 2021, the Bundestag approved the Telecommunications-Telemedia Data Protection Act (TTDSG; DE). The privacy provisions from the Telecommunications Act and the Telemedia Act are merged in this new main law, which will be in line with GDPR and the e-Privacy Directive 2002/58/EC, for a long time supposedly 'covered' in Germany by the Telemedia Act. See section 25 for specifics on cookies; the TTDSG entered into force December 1, 2021. Legal regulation for the use of cookies (EN) from SKW Schwarz Rechtsanwälte/ Lexology October 2021 is helpful explanation as is a Stripe commentary (EN) November 2023. From Covington January 2022: on 22 December 2021, DSK (see below) published its Guidance for Providers of Telemedia Services (Orientierungshilfe für Anbieter von Telemedien). Particularly relevant for providers of websites and mobile applications, the guidance is largely devoted to the 'cookie provision' of the TTDSG. The publication focuses on the consent requirement for cookies and similar technologies, as well as relevant exceptions, introduced by the law; full article with extracts of the DSK guidance in English here and the guidance itself here (DE).
The Telemedia Act, which was the home of marcoms-related clauses from the e-Commerce Directive, was repealed on May 14, 2024, when the Digital Services Act/ Digitale-Dienste-Gesetz (DDG) came into force; DE version here. E-Commerce clauses are now found under Section 6 of the DDG, which is the recognition of the EU's Regulation of the same name. DDG lays the foundation for enforcing the EU Digital Services Act in Germany (EN), same date as the act came into force, is helpful explanation from Taylor Wessing.
The Telemedia Act TMG DE / EN under section 6 delivers the marcoms-related clauses from the e-Commerce Directive 2000/31/EC. The TTDSG makes some amends to the TMG under article 3, though the TMG section 6 provisions that set out e-Commerce information requirements remain under what will become, when the TTDSG comes into force, section 5. Still with us? Additionally, the TMG was amended in November 2020 (DE) to absorb the scope changes to the AVMSD brought about by Directive 2018/1808, which now includes in its remit e.g. video-sharing platforms.
GDPR
Privacy issues should be reviewed with specialist advisors
Changes To The BDSG And TTDSG. Heuking June 27, 2024
The General Data Protection Regulation 2016/679 (GDPR) applied directly in all EU member states from 25 May 2018, replacing the Data Protection Directive 95/46/EC. The European Commission page on GDPR is here. A table here sets out how GDPR relates to some marketing techniques and channels, and to other legislation that applies in marketing, though it is a somewhat broad and selective picture and subject to national differences in application. Member states, Germany included, tend to retain their national privacy legislation and add to it to ‘recognise’ and flank GDPR. Germany’s key data protection law, duly amended, is the Federal Data Protection Act (BDSG - EN). The German Data Protection Authority BfDI, which publishes some text in English, is the best national source for data protection issues, together with the Data Protection Conference (DSK – Datenschutzkonferenz). On a European level, some guidelines related to GDPR are in our links section E; example is April 2021 European Data Protection Board guidelines on the targeting of social media users here. Specific rules related to all of the above four paras are set out by channel in our following section C.
FREEDOM OF ADVERTISING SPEECH
Germany’s ‘Basic Law’ (Grundgesetz GG) is the constitution of the Federal Republic; case law (Benetton) establishes that the fundamental right to freedom of expression in article 5 applies to advertising EN / DE; see also the ‘shock advertising’ sub-head in our following content section B.
PRICING
From the Price Indication Ordinance (PAngV) DE (see below for amended version). When a price is included in consumer advertising, the information obligations in the ordinance must be observed; in particular, the total price inclusive of VAT and other price components must be specified (s.1 (1)). See the pricing section in content section B for full information. Pricing in advertising is often a source of complaint, both consumer and competitor, and sometimes competitor litigation. It’s best to check prices in ads, especially new ads, with legal advisors.
Directive 2019/2161/EU amends the Product Pricing Directive (PPD) 98/6/EC to introduce rules related to promotional pricing, extracted from the Directive here and transposed in Germany by the Ordinance amending the Price Indication Ordinance of November 2021 (Verordnung zur Novellierung der Preisangabenverordnung) DE, under section 3/11, which came into force May 28, 2022. Helpful December 2021 piece on the issue from CMS Germany here. Commission guidance on the application of the article in question (6a of the PPD) here and ECJ '30 day' judgement Aldi promotional pricing September 24, 2024 case is here; Pinsent Oct 4 commentary here.
* Recommended read
New ICC Code September 19, 2024
Press release here and key changes here
French trans November 7, 2024, SW here
EU to re-open, merge CSRD, CS3D & Taxonomy
REP November 20, 2024
TEMU challenged by CPC network (FR)
EC Digital Fitness Check published Oct 3, 2024
Lewis Silkin on above here (scroll down)
Recycling claims mislead consumers:
legal analysis for EU & UK markets Client Earth Oct 2, 2024
AI
The AI Convention CSC Sept 12, 2024 here
EASA newsletter update AI legislation Aug 2024
AI is Everywhere - What about advertising?
BBB National Programs Aug 7, 2024 (audio)
AI Global Regulatory Update. Eversheds Sutherland Feb 22, 2024
EU AI Act: first regulation on artificial intelligence. June 2023
Visual summary of the EU's AI Act's risk levels here
Greenwashing Regulations in the Fashion Industry
White & Case Nov 25, 2024. FR, UK, US, DE, AUS
Greenwashing in the EU, France and the UK
Addleshaw Goddard/ Lex November 11, 2024
Hague Court of Appeal: Shell win 2nd round v Milieudefensie
Burges Salmon November 14, 2024 (see below)
Stichting Milieudefensie v. Shell. Freshfields November 6, 2024
The Hague becomes world’s first city to pass law banning fossil fuel-related ads
The UK Guardian September 13, 2024
There's an almost constant barrage of new and developing rules and regulations all around the world on this issue and especially in Europe, which is where we start. We think it's helpful first to distinguish between 'consumer' rules i.e. those that apply to business-to-consumer communications, and 'corporate' rules, which are those that apply to corporate 'ESG' reporting and financial services sector to investors, though the former ad rules will also apply to the financial sector when they advertise (the corporate reporting and due diligence rules don't per se apply in advertising, but we include them later so as to complete 'the green picture'). Anyway, consumer rules first as that's where most of our interests lie. In Europe, you need to be aware in particular of two directives driving the commercial communications elements of the 'Green deal' agenda:
1. The 'Empco' Directive 2024/825, full title and directive here, which was in force from March 2024, meaning that member states have until September 2026 to implement. Basically, and for our purposes, the Directive is an amendment of the seminal UCPD 2005/29/EC which forms the cornerstone of consumer protection rules in Europe. New environmentally-specific clauses are added to the 'blacklist' and e.g self-certification is banned. There's a good summary here from Taylor Wessing. Clauses are placed in our following content section B.
2. The Green Claims Directive. The Commission pages on the proposed new law, which has new requirements for substantiation and verification of green claims, are here. The European Parliament is expected to reach final agreement before the end of 2024; there's likely to be an extended implementation period. A good June 2024 summary here from Freshfields Bruckhaus Deringer and EASA's update, also June 2024, here.
Navigating the increasing scrutiny of green claims
Slaughter and May November 19, 2024. EU, UK. Audio
Standards for Claims of “Carbon Neutral” and “Climate Friendly”
Formosan Brothers October 4, 2024
UK / EU / International ESG Regulation monthly round-up
Hogan Lovells July 2024 pub'd Aug 9, 2024
Katjes 'Climate Neutral' & Green Claims Globally
Herbert Smith Freehills/ Lex July 10, 2024
CSDDD FAQs Proskauer October 4, 2024
FAQs on the implementation of the EU corporate sustainability reporting rules
From the Commission August 7, 2024. Ropes & Gray unpack them here
As this aspect of the green deal is not directly ad-related and as there's so much ground to cover, we've linked the information here
This analysis of the four key directives from White & Case July 8, 2024 is helpful in explaining their roles and see also Regulation Across Jurisdictions from Sidley Austin July 17, 2024
Understanding consumer law when conducting influencer marketing
campaigns in the EU and UK. BCLP October 7, 2024
This is a high profile and somewhat controversial (in regulatory terms) marketing technique that’s deployed right across the world. Most jurisdictions, in Europe at any rate, publish specific rules or guidelines, be they from statutory consumer protection authorities increasingly involved or, more frequently, self-regulatory organisations. The big and consistent issue is obviously identification when a post is an ad, when it's been incentivised in some way; less consistent is the way that authorities require that identification to be made, so check the rules/ guidelines in each country. A number including the US and Canada, Belgium, France, Italy, The Netherlands, Germany, Poland, Spain, Sweden, Australia and China have been assembled by the admirable DLA Piper in their Global Influencer Guide published 2022. For other international rules/ guidelines see ICPEN's Guidelines for Digital Influencers, which dates back to 2016 and the IAB's 2018 Content & Native Disclosure Good Practice Guidelines. August 7, 2024 GALA discuss ARPP's (French self-reg organisation) Certificate of Responsible Influence here and EASA's (the European self-regulatory network) expansion of that is set out here.
The European Commission got interested some time ago and has issued various edicts/ hubs/ guidelines, as is its wont:
The Commission publish The Influencer Legal hub 'These resources are for anyone making money through creating social media content.' and 'The information in the Influencer Legal Hub reflects the position of the Consumer Protection Cooperation Network which adopted the 5 Key Principles on Social Media Marketing Disclosures.' On May 14, 2024, the EU Council approved ‘Conclusions on ways to support influencers as online content creators in the EU.’ Bird&Bird on that here June 12.
In the US, the key rule maker is the FTC (Federal Trade Commission, a government agency), which issues a number of guidelines, the most important of which are:
Guides Concerning the Use of Endorsements and Testimonials in Advertising
Disclosures 101 for Social Media Influencers
FTC Requirements For Influencers: Guidelines and Rules
Termly Feb 2, 2024 published FTC Requirements For Influencers: Guidelines and Rules, a good summary by platform
In self-regulation, the National Advertising Division (NAD) of the Better Business Bureau (BBB) make available a number of cases here; the BBB's ad code is here, clause 30 Testimonials and Endorsements. The key issue, defined by FTC and deployed by NAD, is any 'material connection' between advertiser and influencer and the adequacy of its disclosure, which must be 'clear and conspicuous.' See the US 'general rules' database on this website for more.
ASCI's June 2021 Guidelines for Influencer advertising in digital media (link to a downloadable pdf). Additionally, from the CCPA's Guidelines for Prevention of Misleading Advertisements and Endorsements 2022 (CCPA guidelines): 14. Disclosure of material connection (the same term used by ASCI). 'Where there exists a connection between the endorser and the trader, manufacturer or advertiser of the endorsed product that might materially affect the value or credibility of the endorsement and the connection is not reasonably expected by the audience, such connection shall be fully disclosed in making the endorsement.' In January 2023 the Department of Consumer Affairs, who administer the Consumer Protection Act, issued 'Endorsement know-hows' on when and how to disclose a 'material relationship.' Commentary from SS Rana/ Lex here. Additional Influencer Guidelines for Health and Wellness Celebrities, Influencers and Virtual Influencers August 10, 2023 by the Consumer Protection Authority (CCPA) is here. Summary of Influencer rules from Kan & Krishme/ GALA December 7, 2023 is here.
The latest ICC Code was published September 18, 2024
The code is structured in two main sections: General Provisions and Chapters. General Provisions sets 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 & Digital Marketing Communications (C) Environmental Claims in Marketing Communications (D) and Teens and Children (E). 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 (2021)
ICC Framework for Responsible Food and Beverage Marketing Communication
Key rules are set out in the following content section B and channel section C, as applicable
Lawyer commentary
Kids and Teens Online Safety and Privacy Roundtable
Baker Mckenzie July 26, 2023. Canada UK and USA. Video
EU: Two Key Decisions Highlight Issues When Handling Children's Data
Collyer Bristow/Lex 21 June, 2023
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.
Issue or channel | Key European legislation and clauses |
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 |
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://data.europa.eu/eli/dir/2000/31/oj
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
December 2021 Commission guidance. See Omnibus Directive below; also amended by the Empco Directive see Environmental Claims section
|
Audiovisual media |
Directive 2010/13/EU concerning the provision of audiovisual media services (Audiovisual Media Services Directive; consolidated version) Directive 2018/1808 extended some rules into especially video-sharing platforms |
Data Processing |
Regulation 2016/679/EU on the processing of personal data (GDPR) |
Two relatively recent arrivals in EU digital platform regulation are the Digital Markets Act (implemented May 2023), aka Regulation (EU) 2022/1925 and its implementing provisions; Commission explanatory pages here and the Digital Services Act, pages here (implemented Feb 2024 for all platforms) aka Regulation 2022 (EU) 2022/2065. The first, as the name implies, is the EU's means of reining in the major digital 'gatekeepers' to ensure 'fairer and more contestable' markets. Somewhat obviously, the rules are aimed at platforms rather than advertisers and agencies, though there are implications for behaviourally targeted advertising. The DSA's main goal 'is to prevent illegal and harmful activities online and the spread of disinformation.' Loosely, this is the EU's Online Safety Act.
Shaping The Future Of Tech: Latest Updates On The Digital Markets Act
Quinn Emanuel/ Lex October 10, 2024
Rules for data processing, consent and information in digital communications in Europe are shown above under the Directives table and in our channel section
See the US general rules on this database for privacy/ processing rules in that jurisdiction. Below are some key legal commentaries on this topic
Data Protection & Privacy: EU overview. Hunton Andrews Kurth July 3, 2024*
Data Protection update - August 2024. Stephenson Harwood/ Lex
Above covers Australia, China, EU, UK, USA
Consent or pay: one rule for some (large online platforms),
another rule for everyone else? Weil Gotshal & Manges 30/8/24
Meta’s Ad-Free Subscription Violates Competition Law
Adam Satariano NYT July 1, 2024
EDPB Opinion 8/2024 on Pay or Consent April 17. Lexia May 8
EDAA launches new solution to DSA ad transparency requirements
Report from the Commission to the European parliament and the Council on implementation
June 18, 2024. Commentary from Lewis Silikin July 9, 2024 here (See third entry)
Directive 2019/2161, known as the Omnibus Directive but more formally as (deep breath) 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 sets out new information requirements for search rankings and consumer reviews, new pricing information in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful October 2021 explanatory piece on the Omnibus Directive from A&L Goodbody via Lex here. Provisions were supposed to have been transposed and in force in member states by May 28, 2022, though there were several delays, now resolved.
...............................................................
Sections B and C below set 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.
As this is reference work rather than current, we have made it available in back-up here
Advertising, Media and Brands Global Hot Topics Squire Patton Boggs Sept 16, 2024
1. SELF-REGULATION FROM THE AUTHORITY
1.1. The DW Children and Adolescents Code
1.2. Special prohibitions or restrictions of particular products
1.3. Adjudications
2. INTERNATIONAL RULES FROM THE ICC
3. SELF-REGULATION FROM INDUSTRY
3.1. Toys
3.2. Video games
4.1. The Unfair Competition Act
4.2. The Interstate Treaty on the Protection of Minors
4.3. Youth Protection Guidelines from the state media authorities
5.1. DW codes
5.2. The ICC Code
5.3. The law
1.1. From the Children’s Code (EN) from Deutscher Werberat
For advertising with and for children which specifically targets children, in television, radio and telemedia (online), the following principles are to be observed in the design and implementation of advertising measures:
For advertising in television, radio and telemedia (online), which specifically targets adolescents, the following rules apply:
Children in dangerous situations
In advertising where children are performers, and in advertising aimed at children, special care must be taken to ensure that they are not shown in dangerous situations
Sexualized depictions of children
Sexualized depictions of children are prohibited. This already applies under the Law for the Protection of Youth. Adjudications are on a case-by-case basis: If children are shown in a child-friendly pose and children’s clothing, there is no case for complaint. It may be different if, for example, young girls are presented in such a way as to allude to the ‘Lolita’ syndrome
Frightening advertising
A key principle is that there should be no advertising that makes children feel particularly troubled, or that causes fear. However, it is possible to show a stressful scene (for example, family conflicts, weather conditions, accidents), if the advertising shows a positive resolution of the scene ("happy ending").
Alcohol
DE: https://werberat.de/werbekodex/alkoholhaltige-getraenke/
EN: https://werberat.de/wp-content/uploads/2023/06/code_of_conduct_alcoholic_beverages_2009_1.pdf
Gambling
DE: https://werberat.de/werbekodex/gluecksspiel/
EN: https://werberat.de/wp-content/uploads/2023/06/dw_code_of_conduct_gambling_2012_en.pdf
Foods
DE: https://werberat.de/werbekodex/lebensmittel/ (Jan 2020)
EN: long URL, so here
Guidelines (DE):
https://werberat.de/wp-content/uploads/2023/06/digitaler_leitfaden_werbekodex_lebensmittel_2021.pdf
Under 14s and food advertising:
https://werberat.de/werbekodex/lebensmittel/unter-14-jaehrige-und-lebensmittelwerbung/
.................................................
Here’s the landing page that has the downloadable pdfs of all the codes in English:
https://www.werberat.de/content/english-keyfacts
1.3. Adjudications
A selection (made by the SRO) of complaints/ adjudications in 2017 is here. Only one relevant (children's) adjudication is shown within the selection:
The display of a Kreishandwerkerschaft (independent association of a region’s craftsmanship) was overwritten with "Do your thing! No longer in school? Then throw it up!", followed by the proposal to start an apprenticeship immediately. The complainants criticised the blatant call for young people to drop out as unsustainable. Contacted by the Advertising Council, the Kreishandwerkerschaft acknowledged that their advertising was probably too bold. It was not at all their intention to encourage young people to drop out of school. The ad was subsequently changed.
2. INTERNATIONAL RULES FROM THE ICC
These rules are shown because the Self-Regulatory Organisation Deutscher Werberat take them into account when making adjudications
ICC Advertising and Marketing Communications Code 2018 (EN)
Article 18.1. General principles
Special care should be taken in marketing communications directed to or featuring children or teens
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:
18.2. Inexperience and credulity of children
Marketing communications should not exploit inexperience or credulity, with particular regard to the following areas:
1. When demonstrating a product’s performance and use, marketing communications should not
a. Minimise the degree of skill or understate the age level generally required for a child to assemble or operate products
b. Exaggerate the true size, value, nature, durability and performance of the product c. fail to disclose data 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
18.4. Social values
For other rules on marketing communications specifically with regard to children: for personal data, see Article 19.4 and in digital interactive media see Chapter C, Article C7. These articles are set out in our following channel section C
3. SELF-REGULATION FROM INDUSTRY
3.1. Toys
There is no Toy code from German authorities as far as we can establish. The following code will not be legally binding per se, and it anyway reflects established rules, and references national codes
3.2. Video games
From the PEGI (Pan European Game information) Code of Conduct (EN)
4.1. The Law Against Unfair Competition (UWG; EN)
This law is described as 'the most important in advertising' by the Wettbewerbszentrale. We have not spelt out individual clauses, as these are available from the link, or below under the General tab. The most child-relevant clauses are found under:
Section 4a Aggressive commercial practices​, which references '3. The deliberate exploitation of any specific misfortune or circumstance of such gravity as to impair the consumer’s or other market participant’s judgement in order to influence his decision.' And 'The circumstances of which account is to be taken pursuant to number 3 include, in particular, the mental and physical infirmity, age, inexperience in commercial dealings, credulity, fears and predicament of consumers (italics ours)​
Annex to Section 3 (3): Prohibited is: 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
4.2. The Interstate Treaty on the Protection of Minors (JMStV)
Article 6 Protection of minors in advertising and teleshopping
applicable to broadcast and telemedia
1. Contain direct appeals to buy or rent goods or services directed at children or adolescents exploiting their inexperience and credulity
2. Directly encourage children or adolescents to persuade their parents or others to purchase the goods or services being advertised
3. Exploit the special trust children or adolescents place in parents, teachers or other persons of trust
4. Unreasonably show children or adolescents in dangerous situations
These rules are spelt out in full under the General tab below. There follows a ‘snapshot’
5.1. DW codes
All advertising, that for children included, should observe not only the rules specific to their category/ audience, but also those rules that apply to all product categories and target markets, i.e. the ‘General’ rules. Principal source of these is Deutscher Werberat (DW). The DW codes apply to all media, and there are some media-specific provisions, including online per this statement in 2011 EN. Relevant DW codes include:
Basic rules for commercial communications (Oct 2007) 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:
Code against Personal Denigration and Discrimination (July 2014) EN / DE; and
Advertising with celebrities EN / DE
5.2. 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 (EN) represents the foundation of much of self-regulation worldwide. The 2018 Code is in four parts:
General Principles
Chapter A  Sales Promotion
Chapter B  Sponsorship
Chapter C  Direct Marketing and Digital Marketing Communications
Chapter D  Environmental Claims in Marketing Communications
Children’s rules are shown in the ICC section above under point 2
Channel rules are shown where applicable under separate headers in our following channel section C
5.3. The law
SELF-REGULATION
1.1. DW Code of Conduct; basic principles
1.2. Personal denigration and discrimination
1.3. Advertising with celebrities (self-reg and legislation)
1.4. ICC Advertising and Marketing Communications Code
LEGISLATION
​2.1. Law against unfair competition
2.2. Broadcast/ AV rules
ENVIRONMENTAL CLAIMS
3.1. The ICC Framework for responsible environmental marketing communications
3.2. UCPD and UWG application to environmental claims
PRICING IN ADVERTISING
- Cae law and guidance
‘SHOCK’ ADVERTISING
1. SELF-REGULATION
1.1 Deutscher Werberat general principles on commercial communications EN / DE
1.2. Code of conduct of the German Advertising Council against personal denigration and discrimination July 2014 EN / DE
A guidance ‘flyer’ issued in June 2019 and based on the above code addresses issues of racism, discrimination against and denigration of women and men, stereotyping, nudity and sex in advertising, objectification and ’ageism’. The applicable German version is here and our translation is here. From the code:
1.3 DW’s Advertising with celebrities EN / DE
Legislation on advertising with politicians and celebrities
Human dignity
The right to one’s own name
1.4 ICC Advertising and Marketing Communications Code
Article 2. Social responsibility
Article 5. Truthfulness
Chapter A: Sales Promotion
Chapter B: Sponsorship
Chapter C: Direct Marketing and Digital Marketing Communications
Chapter D:  Environmental Claims in Marketing Communications
Chapter E: Children and teens
2. LEGISLATION
2.1. The Law Against Unfair Competition
UWG DE / EN (full law, 2019 translation). The UWG is amended by the August 2021 Law to Strengthen Consumer Protection in Competition and Trade Law (DE) effective May 28, 2022, which delivers inter alia the 2019/2161 ‘Omnibus’ Directive clauses relating to search rankings, consumer reviews and international marketing. The amends are set out in English here and shown below
Section 5 Misleading Commercial Practices (B2C and B2B)
Section 5a Misleading by omission
​(1) It is also unfair to mislead a consumer or other market participant by withholding essential information
1. which the consumer or other market participant needs in the respective circumstances in order to make an informed business decision, and
2. the withholding of which is likely to induce the consumer or other market participant to make a business decision that he/ she would not otherwise have made.
(2) Withholding is also considered to be:
1. The hiding of material information,
2. The provision of material information in an unclear, unintelligible or ambiguous manner and
3. Failure to provide material information in a timely manner.
(3) When assessing whether material information has been withheld, the following must be taken into account:
1. The limitations of space or time imposed by the medium used to communicate the commercial practice and
2. Any measures taken by the entrepreneur to make the information available to consumers by means other than the medium used to communicate the commercial practice.
(4) Anyone who does not make identifiable the commercial intent of a commercial practice is also acting unfairly, unless this is directly apparent from the context, and where such failure to identify the commercial intent is suited to causing the consumer or other market participant to take a transactional decision that he/ she would not have taken otherwise. An act in favor of a third party entrepreneur does not have a commercial purpose if the acting party does not receive any remuneration or similar consideration for the act from the third party entrepreneur or does not accept a promise of such a consideration. Receipt or promise of consideration will be presumed unless the agent can credibly demonstrate that he/she has not received such.
5b. Material information
Section 6. Comparative advertising
​
The Blacklist
Annex to Section 3: Thirty B2C commercial practices known as the Blacklist - specific misleading and aggressive commercial practices which are to be regarded as unfair and unlawful under any circumstances, as per s. 3 (3) UWG). The full list is here; the most relevant extracts in this commercial communications context are:
5. Making an invitation to purchase goods or services within the meaning of Section 5a subsection (3) at a specified price when the entrepreneur does not disclose that he has reasonable grounds for believing that he will not be able to supply these, or equivalent, goods or services, or procure such supply, at such specified price for a period that is, and in quantities that are, reasonable (bait advertising). Where stocks are available for less than two days, it shall be incumbent on the entrepreneur to furnish proof of reasonableness;
6. Making an invitation to purchase goods or services within the meaning of Section 5a subsection (3) at a specified price in a situation where the entrepreneur, with the intention of promoting different goods or services instead, then demonstrates a defective example of the goods or services, or refuses to show the consumer the goods or services advertised, or refuses to take orders for the goods or services or to perform the advertised service within a reasonable time
7. Making the false statement that certain goods or services will only be available generally or on particular terms for a very limited time, in order to elicit an immediate transactional decision from the consumer without the latter having the time and the opportunity to make an information-based decision
11. Using editorial content for the purpose of sales promotion where the entrepreneur has paid for this promotion, without such connection being clearly identifiable from the content or by images or sounds (advertorial)
11a (from amendment to the UWG effective May 28, 2022) Covert advertising in search results. The display of search results based on a consumer's online search query without clearly disclosing any paid advertising or special payments that serve to achieve a higher ranking of the respective goods or services within the search results;
23. Making the false statement, or creating the false impression, that the entrepreneur is a consumer or is not acting for purposes relating to his business, trade, craft or profession
28. Including in an advertisement a direct exhortation to children to purchase the goods or services marketed or to persuade their parents or other adults to do so
2.2. Broadcast/ AV rules
The State Media Treaty DE / EN effective November 7, 2020 replaces the Interstate Broadcasting Treaty and now covers media platforms and media intermediaries including, for example, online audio and video libraries, search engines, streaming providers and online social networks. Below are extracts related to advertising content; see article 8 in the linked document for full provisions
1. Prejudice respect for human dignity
2. Include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation
3. Be misleading or prejudice the interests of consumers, or
4. Encourage behaviour prejudicial to health or safety as well as grossly prejudicial to the protection of the environment
10. Advertising and teleshopping for alcoholic beverages shall not promote excessive consumption of such beverages
3. ENVIRONMENTAL CLAIMS
3.2. 'Horizontal' legislation
European Commission guidance
Guidance on the application of Directive 2005/29/EC on Unfair Commercial Practices December 2021, Section 4.1.1. Environmental claims​
4. PRICING IN ADVERTISING
Legislation (1). Act Against Unfair Competition (UWG) DE / EN
Relevant clauses extracted; structure simplified
Note: stating prices correctly in advertising can be difficult from a regulatory perspective. If uncertain, check with your/ your client’s lawyers. The following, as with all of the contents of this website, does not constitute advice, just what the rules say
Section 5 (1) No. 2; false statements:
2. The reason for purchase such as the existence of a specific price advantage, the price or the manner in which the price is calculated, (italics ours) or the conditions on which the goods are supplied or the services provided
Section 5a No. 3 UWG: misleading omissions
3. The total price, or in cases where the nature of the goods or services means that such price cannot be calculated in advance, the manner in which the price is calculated as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot be calculated in advance, the fact that such additional charges may be payable;
Section 5 (4) UWG misleading action
(4) It shall be presumed to be misleading to advertise with a price reduction in a case where the price concerned has been demanded for only an unreasonably short period of time
Point 21 Annex
Other provisions in UWG also applicable to price indication in an advertisement
Guidance and case law
Commission guidance on the application of article 6a of Directive 98/6/EC on consumer protection in the indication of the prices of products offered to consumers (2021)​
Legislation (2)
Price Indication Ordinance PAngV DE
See reference to amends in the final para of this section
Commentary on UWG influence in pricing in advertising, and where it interacts with the Pricing Ordinance is brought together in the linked document below:
http://www.g-regs.com/downloads/DEGenUWGPricingCommentary.pdf
Both the UWG and the Pricing Ordinance have been amended as a result of provisions introduced by Directive 2019/2161/EU. Transpositions of those amends into German Law have been made by the August 2021 Law to Strengthen Consumer Protection in Competition and Trade Law (DE) and the Ordinance amending the Price Indication Ordinance (DE) of November 2021. Both of these acts come into force May 28, 2022. The UWG amends do not affect the pricing clauses; the directive' s pricing clauses, extracted here, are transposed into the ordinance under section 3/11
5. ‘SHOCK’ ADVERTISING
Use of emotional advertising which draws attention to social or political problems or expresses an entity’s attitude to a social issue, where the purpose is not exclusively commercial, is permitted under the following judgement:
From legislation:
‘Basic Law’ for the Federal Republic of Germany Grundgesetz GG EN / DE
Federal Constitutional Court cases:
SELF-REGULATION; the 2024 ICC Code
1.1. General provisions
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
2.4. The Empco Directive
2.5. The Green Claims Directive
1.1 General provisions
Basic principles (Art. 1)
Social responsibility (Art. 2)
Marketing communications should not:
Decency​ (Art. 3)
Honesty (Art. 4)
Truthfulness (Art. 5)
​
identification and transparency (Art. 7)
identity of the marketer (Art. 8)
Use of 'free' and 'guarantee' (Art. 10)
NEW ARTICLE
Presentation of the offer (Art. 11)
NEW ARTICLE
Automatic renewals (Art.12)
NEW ARTICLE
Use of “guarantee” (Art. 13)
Comparisons (Art. 14)​
Exploitation of goodwill (Art. 15)
Imitation (Art. 16)
Denigration (Art. 17)
Testimonials (Art. 13)
Testimonials and endorsements; influencer marketing communications (Art. 18)
Portrayal or imitation of persons and references to personal property (Art. 19)
NEW ARTICLE
Children and teens (Art. 20)
For further specific rules, see Chapter E – Children and teens.​
.........................................................
Safety and health (Art. 21)
NEW ARTICLE
Environmental marketing communications should be so framed so as not to abuse to take advantage of consumers’ concern for the environment, nor exploit their possible lack of environmental knowledge;
​
D4. Comparisons
Article D6 – Claims regarding components and elements
D7. Certifications, signs and symbols
D6. Waste handling
D9. Responsibility
This sector has a separate database on this single topic. Access via the drop-down on the home page
We have not set out individual clauses below, therefore.
Applicable self-regulation
This sector has a separate database on this single topic. Access via the drop-down on the home page
Applicable self-regulation and legislation
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:
2.1 General Provisions from the Unfair Commercial Practices Directive 2005/29/EC (UCPD)
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02005L0029-20220528 (consolidated text 28/05/22)
Directive 2019/2161 amended the UCPD setting out some new information requirements for search rankings and consumer reviews, new pricing information in the context of automated decision-making and profiling of consumer behaviour (amending Directive 2011/83/EU, not shown below), and price reduction information under the Product Pricing Directive 98/6/EC. Potentially significant for multinational advertisers is the amerndment of article 6 of the UCPD, adding the clause (c) shown below in italics (as are other amends). Recitals related to this clause, which provide some context, are here. Helpful October 2021 explanatory piece on the Omnibus Directive from A&L Goodbody via Lex here.
Guidance
In December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version. This is a significant document that covers, for example, guidance on environmental claims, and references relevant case law from a number of countries. It is the definitive guidance on how to apply the most important consumer protection - as that relates to commercial communications - regulation in the EEA
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.
(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors.
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;
(f) for products offered on online marketplaces, whether the third party offering the products is a trader or not, on the basis of the declaration of that third party to the provider of the online marketplace.
4a. When providing consumers with the possibility to search for products offered by different traders or by consumers on the basis of a query in the form of a keyword, phrase or other input, irrespective of where transactions are ultimately concluded, general information, made available in a specific section of the online interface that is directly and easily accessible from the page where the query results are presented, on the main parameters determining the ranking of products presented to the consumer as a result of the search query and the relative importance of those parameters, as opposed to other parameters, shall be regarded as material. This paragraph does not apply to providers of online search engines as defined in point (6) of Article 2 of Regulation (EU) 2019/1150 of the European Parliament and of the Council.
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.
6. Where a trader provides access to consumer reviews of products, information about whether and how the trader ensures that the published reviews originate from consumers who have actually used or purchased the product shall be regarded as material.
Commercial practices which are in all circumstances considered unfair
Marcoms-relevant only; see Empco amends below
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).
11a. Providing search results in response to a consumer’s online search query without clearly disclosing any paid advertisement or payment specifically for achieving higher ranking of products within the search results.
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
23b. Stating that reviews of a product are submitted by consumers who have actually used or purchased the product without taking reasonable and proportionate steps to check that they originate from such consumers.
23c. Submitting or commissioning another legal or natural person to submit false consumer reviews or endorsements, or misrepresenting consumer reviews or social endorsements, in order to promote products.
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:
2.2.1. 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:
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.
Article 6a
1. Any announcement of a price reduction shall indicate the prior price applied by the trader for a determined period of time prior to the application of the price reduction.
2. The prior price means the lowest price applied by the trader during a period of time not shorter than 30 days prior to the application of the price reduction.
3. Member States may provide for different rules for goods which are liable to deteriorate or expire rapidly.
4. Where the product has been on the market for less than 30 days, Member States may also provide for a shorter period of time than the period specified in paragraph 2.
5. Member States may provide that, when the price reduction is progressively increased, the prior price is the price without the price reduction before the first application of the price reduction.
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').
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
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
Article 1
Amendments to Directive 2005/29/EC
(1) in Article 2, the first paragraph is amended as follows: (b) the following points are added:
​
​
(2) Article 6 is amended as follows: (a) in paragraph 1, point (b) is replaced by the following:
(b) in paragraph 2, the following points are added:
(3) in Article 7, the following paragraph is added:
(4) Annex I is amended in accordance with the Annex to this Directive. Annex I to Directive 2005/29/EC is amended as follows:
(1) the following point is inserted:
​
(2) the following points are inserted:
​
(3) the following point is inserted:
‘
(4) the following points are inserted:
Below are the channel rules that apply in this medium to this audience (children). By ‘channel’ rules we mean where and when you can place advertising. We also reference the key content rules and any that are specific to this channel. The regime in Germany for broadcast/ telemedia advertising to children is more demanding than most, including extensive ‘guidelines’ from the state media authorities. Also applicable are the general channel rules that apply to all audiences, children included, all of which are shown under the General tab beneath this 'sector' tab
Article 6 JMStV
These are largely content rules and are shown in content section B. Linked documents here DE / EN​
APPLICABLE LEGISLATION AND GUIDELINES
As far as we can establish, the guidelines below are not updated to bring them into line with the State Media Treaty, albeit they are largely related to arrangements for sponsorship/ product placement unaffected in broadcast
COMMERCIAL BROADCASTING GUIDELINES
TV: Joint directive of the German state media authorities governing advertising, product placement, sponsorship and teleshopping on television (TV Advertising Directive) DE / EN; this and the radio version below are old - 2012 - but as far as we can establish, still in force. Online references to ad supervision from the state media authorities here
Radio: Common Guidelines of State Media Authorities for advertising, to implement the separation of advertising from programming, and for sponsorship and teleshopping on radio DE / EN
PUBLIC BROADCASTING GUIDELINES
ARD/ ZDF Guidelines for advertising, sponsorship, competitions and production aid, applicable to public service broadcasting DE / EN (GRS translation)
AUDIOVISUAL
CHILDREN
For clauses related to marcoms to children, see children sector on the home page of this website or the linked files above under applicable legislation and guidelines
PRODUCT PLACEMENT
State Media Treaty, article 10, applicable to public service and commercial broadcasting
EASA Jan 2024 update on the AVMSD
Article B12: Media sponsorship
​
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 italics below) and under our General sector. Clauses below are those most relevant to advertising content
1. Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:
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
CINEMA
The rules from our earlier content section B apply to cinema advertising, except where those are specific to broadcast or to online
Art. 11 (5) Youth Protection Act EN / DE: commercials and advertising programmes for tobacco products and alcoholic drinks must not be shown before 6 p.m., notwithstanding conditions in sub-clauses 1 through 4. Note: GRS improved translation of Articles 9 and 11 the full translation linked above is not correct for art. 9):
http://www.g-regs.com/downloads/DE_YouthProtectionAct_EN_Arts9_11.pdf
The rules from our earlier content section B apply to print advertising, except where those are specific to broadcast or to online
Self-regulation
Section 7 Separation of advertising and editorial content (included for relevance to Native)
The responsibility of the press towards the general public requires that editorial publications are not influenced by the private or business interests of third parties or the personal economic interests of the journalists. Publishers and editors must reject any attempts of this nature and make a clear distinction between editorial and commercial content. If a publication concerns the publisher‘s own interests, this must be clearly identifiable
OUTDOOR
Applicable self-regulation and legislation
Refer to Content Section B for provisions; of particular relevance below:
Identity of the marketer (Art. 8)
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 ICC Code Media sponsorship
Commission's call for evidence on DSA minors protection guidelines; closes 30th Sept 2024
EASA on the above and two calls for tender August 8, 2024
This section provides the broad regulatory picture for the commercial digital environment and children’s marcoms. Specific channel rules such as email, OBA etc. follow under separate headers. Advertising online is subject to the self-regulatory and statutory rules in owned and (some) earned space as well as paid. The principal source of content rules is the DW Children’s Code (EN). Children’s marcoms online is obviously a sensitive issue in most countries, and Germany is no exception
References below are important as they are from the state media authorities and latterly on the sensitive topic of Identification of advertising in social media
Privacy issues should be reviewed with specialist advisors

‘Are there any specific safeguards for data about children?
Your company/ organisation can only process a child’s personal data on grounds of consent with the explicit consent of their parent or guardian up to a certain age. The age threshold for obtaining parental consent varies between 13 and 16 years, depending on the age established in each EU Member State. Check with your National Data Protection Authority (Note: In the case of Germany, that’s BFDI; they confirm 'child' in this context as under 16)
Online Marketing and the Digital Services Act (EN) from Heuking/ Lex March 14, 2023 ties in the German regime with the DSA, in force February 17, 2024. The EC pages on the act here and the act itself, aka Regulation 2022/2065, here. The article explains the impact on behavioural advertising and potential for issues with GDPR
CONTEXT AND KEY ISSUES
This section sets out the rules for online communications generally; individual media/ channels such as email, OBA, Own websites etc. are shown under the respective headers that follow. Broadly, commercial communications online are in remit in Germany; the related Deutscher Werberat declaration is here. A key issue set out below is identification of advertising in social media. Best guidance on privacy matters especially is from the European Data Protection Board; their guidelines are shown below under respective headers. The impact of GDPR, with national legislation that recognises and flanks the Regulation, in Germany’s case the Federal Data Protection Act (BDSG), is shown under individual channel sections that follow where relevant. This Q&A: online advertising in Germany from SKW Schwarz/ Lex September 29, 2023 is a helpful overview
APPLICABLE LEGISLATION AND SELF-REGULATION
GUIDELINES
SOCIAL MEDIA: INFLUENCER MARKETING
AD MARKERS/ IDENTIFIERS: HASHTAGS FOR SOCIAL MEDIA
“To all savers/ smart spenders: Note/ Listen up ONLY tomorrow there will be a 40% discount on eye make-up in all branches of #rossmann & on the online shop! Have fun shopping! @mein_r. Eyes: RdeL Y. Mascara & M.N. Y. The Rock Nudes Eye Shadow Palette. #b. #ad #eyes #shopping #discount #40%”
​
RECOMMENDATIONS/ REFERRALS
OLG Hamm, decision dated 10.9.2013, 4 U 48/13, Para. 108
RELATED CASE
Repository of European IAB’s Initiatives for Responsible Digital Advertising
IAB 30 September 2024. Topics Privacy, DSA, Influencer marketing, Qualid, Child Safety,
Commission's call for evidence on DSA minors protection guidelines; closed 30th Sept 2024
EASA on the above and two calls for tender August 8, 2024
Meta and self-regulation December 2023
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
Online Deals Do's And Don'ts For Online Business Under EU Law
Logan & partners/ Mondaq November 28, 2023
Directive 2000/31/EC on electronic commerce
Regulation 2016/679/EU on the processing of personal data (GDPR)
Directive 2018/1808 amending AVMS Directive 2010/13/EU
Two relatively recent arrivals in EU digital platform regulation are the Digital Markets Act (implemented May 2023), aka Regulation (EU) 2022/1925 and its implementing provisions; Commission explanatory pages here and the Digital Services Act, pages here (implemented Feb 2024 for all platforms) aka Regulation 2022 (EU) 2022/2065. The first, as the name implies, is the EU's means of reining in the major digital 'gatekeepers' to ensure 'fairer and more contestable' markets. Somewhat obviously, the rules are aimed at platforms rather than advertisers and agencies, though there are implications for behaviourally targeted advertising. The DSA's main goal 'is to prevent illegal and harmful activities online and the spread of disinformation.' Loosely, this is the EU's Online Safety Act.
Chapter C ICC Code; Direct Marketing and Digital Marketing Communications (extracts)
2024 amends in italics; there are some 20 articles in this section of the code
C2. Identification and transparency
Article C3 – Presentation of the offer
The terms of offers should be presented in a transparent and understandable manner in accordance with Article 11 (Presentation of the Offer) of the General Provisions
C2. Identity of the marketer
Directive 2002/58/EC; Article 13
Unsolicited communications
* Now repealed; GDPR applies
General information to be provided
(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)
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:
Article 7
Unsolicited commercial communication
Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here
For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial communications
European Data Protection Board / Article 29 Working Party
EASA Digital Marketing Communications Best Practice Recommendation. This document:
The relevant 'Cookies' Directive, an amended form of Privacy Directive 2002/58/EC, was not conventionally transposed in Germany, the Telemedia Act (TMG) being deemed fit for purpose. Issues arise from the introduction of the GDPR 2016/679 from May 25, 2018: while GDPR does not directly address cookies, in the event that cookies that identify individuals are deployed, then lawful processing rules from the GDPR may apply. We do not address ‘cookie statements’. Privacy issues should be reviewed with specialist advisors
* The newly amended Federal Data Protection Act does not appear to state the age bracket of a child; in relation to lawful processing, the GDPR references under article 8 ‘the processing of the personal data of a child shall be lawful where the child is at least 16 years old. Where the child is below the age of 16 years, such processing shall be lawful only if and to the extent that consent is given or authorised by the holder of parental responsibility over the child. Member States may provide by law for a lower age for those purposes provided that such lower age is not below 13 years.’ For guidance, Germany’s Youth Protection Act defines a child as under 14, and adolescents from 14 up to 18
Privacy issues should be reviewed with specialist advisors
Consent Management Ordinance Heuking Sept 24, 2024
Privacy Sandbox news and updates
CJEU Landmark Data Protection Ruling for Online and Behavioural Advertising
William Fry/ Lex September 8, 2023
The EU "Cookie Pledge" Preiskel & Co/ Mondaq 12 June 2023. Pledge here
Bird&Bird's Global Cookie Review of Winter 2022 includes a clear and complete summary of rules in Germany
EU Rules on Online Targeted Advertising Covington & Burling Aug 2022 on existing targeted ad rules & DSA impact
Online Marketing and the Digital Services Act (EN) from Heuking/ Lex March 14, 2023 is an important piece in this context because it ties in the German statutory regime with the Digital Services Act, which will apply from January 1, 2024. The EC pages on the act are here and the act itself, also known as Regulation 2022/2065, here. The linked article also explains scope, the impact on behavioural advertising and the potential for issues with the GDPR relationship. While provisions largely are aimed at online platforms, there are clear implications for the advertising industry
APPLICABLE LEGISLATION AND GUIDANCE
In May 2021, the Bundestag approved the Telecommunications-Telemedia Data Protection Act (TTDSG; DE). The privacy provisions from the Telecommunications Act and the Telemedia Act are merged in this new main law, which will be in line with GDPR and the e-Privacy Directive 2002/58/EC, for a long time supposedly 'covered' in Germany by the Telemedia Act. See section 25 for specifics on cookies; the TTDSG enters into force December 1, 2021. Legal regulation for the use of cookies (EN) from SKW Schwarz Rechtsanwalte/ Lex October 2021 is helpful explanation. From Covington January 2022: 'On 22 December 2021, DSK published its Guidance for Providers of Telemedia Services (Orientierungshilfe für Anbieter von Telemedien). Particularly relevant for providers of websites and mobile apps, the Guidance is largely devoted to the 'cookie provision' of the TTDSG. The publication focuses on the consent requirement for cookies and similar technologies, as well as relevant exceptions'; full article with extracts of the DSK guidance in English here and the guidance itself here (DE)
OBA SELF-REGULATION
GUIDANCE COOKIES AND OBA
KEY CLAUSES COOKIES RULES
Germany has not explicitly implemented the Cookie Directive, i.e. the amended Article 5 (3) of Directive 2002/58/EC. It was originally agreed by the relevant authorities that the following provisions from the Telemedia Act (TMG) fulfil the requirements. Subsequently, the DSK opinion is that Sections 12, 15 (1) and 15 (3) TMG ceased to be applicable when the GDPR came into effect. Provisions of the GDPR apply by default: Piece from Covington and Burling (EN). See note above re the finalisation of the new cookie rules under the Telecommunications and Telemedia Data Protection Act TTDSG (DE) in force December 1, 2021
CONSENT TO COOKIES
Privacy rules for targeted advertising in the UK and EU. Reed Smith/ Lex August 2023
Note that the rules immediately below are not reviewed in the context of GDPR and how that impacts (cookies) consent. Guidance is from the WP29 document: Guidelines on Consent under Regulation 2016/679 (May 2020). See also introductory para above re TTDSG
Section 13 (2) TMG provides that consent can be declared by electronic means if the service provider:
OBA
Online Marketing and the Digital Services Act (EN) from Heuking/ Lex March 14, 2023 ties in the German regime with the DSA, in force February 17, 2024. The EC pages on the act here and the act itself, aka Regulation 2022/2065, here. The article explains the impact on behavioural advertising and potential for issues with GDPR
EU Rules on Online Targeted Advertising from Covington and Burling/ Lex August 2022 sets out the existing targeted advertising rules and the impact of the DSA, in force January 2024
The OBA icon above, which can be found on digital advertising and on web pages to signal that OBA is on those sites, is licensed to participating companies by the EDAA. The consumer is provided with a link on the icon to the OBA Consumer Choice Platform http://www.youronlinechoices.eu/, a pan-European website with information on how data is used, a mechanism to ‘turn off’ data collection and use, and a portal to connect with national Self-Regulatory Organisations for consumer complaint handling
Consent or pay: one rule for some (large online platforms),
another rule for everyone else? Weil Gotshal & Manges 30/8/24
A new path for Privacy Sandbox on the web July 22, 2024
Third party cookie plans for Chrome. WFA view here
Meta’s Ad-Free Subscription Violates Competition Law
Adam Satariano NYT July 1, 2024
EDPB Opinion 8/2024 on Pay or Consent April 17. Lexia May 8
Applicable legislation, self-regulation and guidance
Note that legislation is implemented in member states, sometimes with nuance
European Commission Data Protection website:
https://ec.europa.eu/info/law/law-topic/data-protection_en
IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era
And in July 2021 the Guide to Contextual Advertising
Commission's 'Cookie Pledge' pages here; includes draft pledging principles and December 2023 EDPB opinion on compliance with e-Privacy Directive and GDPR
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
Directive on privacy and electronic communications 2002/58/EC as amended by Directive 2009/136/EC
GDPR
Meta must limit data for personalised ads
BBC October 4, 2024. Hunton Oct 15
EDAA launches new solution to DSA ad transparency requirements
EDPB ban on Meta processing personal data for behavioural advertising
DAC Beachcroft/ Lex December 6, 2023. EDPB here
Privacy Challenges For Digital Advertising, Particularly In Europe
Squire Patton Boggs 22 November, 2023
Applicable regulation and opinion
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
Privacy issues should be reviewed with specialist advisors
​
DDV (Deutscher Dialogmarketing Verband – DDV)
​
German Act against Unfair Competition (amended) - E-mail advertising and forum shopping (EN) from Maiwald Patentanwalts- und Rechtsanwalts-GmbH April 2022 discusses case law relating to the applicability of the Unfair Competition Act to commercial communications via e-mail
CONTEXT
The communications that we deal with in this section are ‘direct electronic marcoms’ such as email and SMS; fuller definition here. Our focus is on the communications themselves – statutory information requirements within the commercial message, for example – rather than the ‘back end’ data processing (DP) and related consent issues. We provide linked laws and other supporting documents, but we don’t spell out specific DP requirements. With that context in mind, key legislation relating to the processing of personal data (in short, data that identifies an individual) is the GDPR in force from May 25 2018, and 'flanked' nationally by the Federal Data Protection Act (BDSG; link is to English version). The content rules set out in our earlier section B, except those that relate to broadcast advertising, together with any sector-specific content rules, should be observed in this channel
Privacy issues should be reviewed with specialist advisors
APPLICABLE LEGISLATION
APPLICABLE SELF-REGULATION
The DDV Codes are now behind a pay wall; we are not able to confirm whether we have linked the latest versions
GUIDANCE
KEY CLAUSES: OPT-IN
Existing customer relationships; ‘soft opt-In’
​
INFORMATION OBLIGATIONS
THE IMPRINT
Tell-a-friend case
Privacy issues should be reviewed with specialist advisors
​
Direct Marketing of Goods and Services in EU
ICLG April 2024. Clear and informative and (EN)
2024 GDMA International email benchmark
Posted June 2024
Directive 2002/58/EC; Article 13
Unsolicited communications
* Repealed; GDPR applies
- 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
Privacy issues should be reviewed with specialist advisors
As websites, including ‘commercial’ social media pages, will often be the source of emails or other communications generated to users, the rules expressed in 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
CONTEXT
The same principle that applies in paid space also applies in non-paid space such as marketers’ own websites and SNS spaces: if the communication from the website owner is advertising, it’s covered by the rules. As the lines between ‘editorial’/ information and advertising can be particularly blurred online, the definition of advertising is important: the Telemedia Act (EN; key clauses prior to 2020 scope amends) describes ‘commercial communications’ as ‘every form of communication which serves the direct or indirect promotion of the sale of goods, services or the image of a company…’ The link shows some exemptions; generally, user-generated content, for example, is exempt unless endorsed by the marketer. The German regime requires some specific information to be shown clearly on ‘business-like’ websites; these requirements are available below, together with some rules on the content of commercial communications in this environment
APPLICABLE LEGISLATION AND SELF-REGULATION
KEY RULES
THE IMPRINT
INFORMATION REQUIREMENTS
VLOGGING/ BLOGGING (extracts only)
​
OTHER SOCIAL MEDIA INTERACTIONS
As websites, including ‘commercial’ social media pages, will often be the source of emails or other communications generated to users, the rules expressed in the preceding section Direct Online communications should be observed, as user consent is in this context, especially related to e.g. ‘tell-a-friend’ techniques, cannot be assumed, and as there are other information requirements that apply to all forms of user communications
GDPR
Privacy issues should be reviewed with specialist advisors
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’. The other aspect of this environment that can be subject to regulatory issues is that of 'dialogue' between brand owners and consumers, where Consent and Information requirements may apply; see our General rules sector for specifics
ICC Advertising and Marketing Communications Code (EN 2024); 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)
Directive 2018/1808 amending AVMS Directive 2010/13/EU (AVMSD)
EASA Best Practice Recommendation on Digital Marketing Communications 2023
Directive 2002/58/EC on Privacy and Electronic communications; Article 13
Unsolicited communications
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
Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here
For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial commnications
EU Guidance/ opinion documents
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
DEFINITION AND KEY ISSUES
Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe’s December 2016 How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of Native ads, some good practice recommendations, and a summary of EU rules and their December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.' The ‘native’ form of advertising is like any other advertising - it’s subject to the content rules, in this context those that are set out under our earlier content section B, and others that may be sector-specific. The key general rule is that of identifiability/ disclosure. Various regulations, the most significant of which is the UWG (EN), cover the rule in slightly different ways, but all are clear that advertising must be identifiable as such
APPLICABLE LEGISLATION
Case law
APPLICABLE SELF-REGULATION
Section 7 Press Code: separation of advertising and editorial content
The responsibility of the Press towards the general public requires that editorial publications are not influenced by the private or business interests of third parties or the personal economic interests of the journalists. Publishers and editors must reject any attempts of this nature and make a clear distinction between editorial and commercial content. If a publication concerns the publisher‘s own interests, this must be clearly identifiable
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
ICC Advertising and Marketing Communications Code (EN 2024)
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
IAB Europe Guidance (as above in intro): How to Comply with EU Rules Applicable to Online Native Advertising (December 2016) here
And in December 2021 IAB Europe's Guide to Native Advertising provides 'up-to-date insight into native ad formats and best practices for buyers.'
Identification and transparency (Art. 7)
Identity of the marketer (Art. 8)
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
Following feedback, we no longer cover Telemarketing
Following feedback, we no longer cover Telemarketing
Following feedback, we no longer cover Telemarketing
OVERVIEW
Privacy issues should be reviewed with specialist advisors
APPLICABLE LEGISLATION AND SELF-REGULATION
A. Legislation
B. Self-regulation and guidance
B1. ICC Advertising and Marketing Communications Code (EN). Chapter C Direct Marketing
B2. Code of Ethics from the DDV Deutscher Dialog Verband
Note: the status of the linked document is unclear since the introduction of GDPR. The DDV has published more recently e.g. the Best Practice Guide "European General Data Protection Regulation: Effects on Dialogue Marketing", available only to members
C. Guidance/ case law ​
Principle of opt-out consent; see WBZ Review EN
Case examples related to the above are shown in the linked document here:
http://www.g-regs.com/downloads/DEGenDMcaseexamples.pdf
Applicable self-regulation and 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:
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
Guidelines on consent under Regulation 2016/679 (May 2020)
.................................................................
Billion-dollar European Football: What is/ not allowed in advertising
Taylor Wessing May 30, 2024 (DE; video)
Ambush marketing: the European summer of sport
Taylor Wessing May 16, 2024
GUIDE: The Olympic Games 2024 - Beating around le ambush
Lewis Silkin 25 January, 2024
CONTENT RULES
B1. Principles governing sponsorship
B2. Autonomy and self-determination
B3. Imitation and confusion
B4.  Ambushing of sponsored properties
B5.  Respect for the sponsorship property and the sponsor
B6. The sponsorship audience
B7.  Data capture/ data sharing
B8.  Artistic and historical objects
B9.  Social and environmental sponsorship
B10.  Charities and humanitarian sponsorship
B11. Multiple sponsorship
B12.  Media sponsorship
B13. Responsibility
.....................................................
The European Sponsorship Association (ESA) may also be able to help/ inform
Pilot Project Relaxes Olympic Games' Rule For Participating Brands
Marks & Clerk July 19, 2024
Paris Olympics & Paralympics - Part 2: What could possibly go wrong?
Squire Patton Boggs july 16, 2024
GUIDE: The Olympic Games 2024 - Beating around le ambush
Lewis Silkin 25 January, 2024
B1: Principles governing sponsorship
B2: Autonomy and self-determination
B3: Imitation and confusion
B4: 'Ambushing' of sponsored properties
B5: Respect for the sponsorship property and the sponsor
B6: The sponsorship audience
B7: Data capture/ data sharing
B8: Artistic and historical objects
B9: Social and environmental sponsorship
B10: Charities and humanitarian sponsorship
B11: Multiple sponsorship
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 or regulations on the mechanics of promotions. However, in the course of extensive research in marketing, relevant rules are included. National self-regulatory codes and consumer protection legislation around pricing, for example, are checked for any provisions that affect SP and included below, in most cases under the General tab
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
CONTEXT
This website was created in order to provide multinational rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National Self-Regulatory codes and Consumer Protection legislation around pricing, for example, are checked for any provisions that may affect SP and included below.
Note that promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance are considered a lottery and are generally illegal
1. KEY CLAUSES LEGISLATION
(non-exhaustive)
It is presumed to be misleading to advertise with a price reduction in a case where the price concerned has been demanded for only an unreasonably short period of time (‘moon price advertising’, Mondpreiswerbung). In the event of dispute as to whether, and for what period of time, the price was demanded, the burden of proof shall fall upon the person who advertised the price reduction (Section 5 (4) misleading commercial practices)
Other provisions in UWG also applicable to price indication in an advertisement
Games and prizes
Offers and conditions
2. KEY CLAUSES SELF-REGULATION
The ICC Advertising and Marketing Communications Code (EN), Chapter A extracts :
Article A2. Terms of the offer
Article A4. Administration of promotions
Article A6. Presentation to consumers
Information requirements
Information should include, where relevant:
Information in prize promotions
Where a sales promotion includes a prize promotion, the following information should be given to consumers, or at least made available on request, prior to participation and not conditional on purchasing the main product:
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 as well as more specific requirements related to pricing, promotional conditions etc. .
ICC Advertising and Marketing Communications Code (EN 2024), 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
ICC Code Chapter A Sales Promotion
Clauses are from the 2024 edition of the Code
A1: Principles governing sales promotions
A2: Transparency and terms of the offer
Sales promotions should be transparent. This means that the terms of the offer should be easily identifiable, accessible and straightforward for the consumer, inclusive of any restrictions and limitations. Measures should be taken to avoid exaggerating the value of any promotional item or obscuring or minimising the price of the main product.
A3: Presentation
Sales promotions should not be designed or presented in a manner that is likely to be misleading about value, nature or participation process.
A4: Administration of promotions
Sales promotions should be administered using appropriate resources and supervision and should incorporate proper safeguards to ensure that the offer’s administration aligns with the reasonable expectations of consumers. In particular:
A5: Safety and suitability
A6: Presentation to consumers
Sales promotions should be presented so that consumers are informed beforehand of any conditions likely to influence their decision to purchase. Consumers should be able to easily access the terms and other essential information, in particular when accepting the offer. Information should include, where relevant and having regard to the medium used:
Promotions claiming to support a charitable cause should not exaggerate the contribution derived from the campaign. Consumers should be informed, before purchasing the promoted product, how much of the price will be allocated for the cause or the total donation amount.
Free entry claims should be used only if the consumer’s path to access is charged at a standard rate, meaning the consumer will not incur any communication cost beyond the maximum of that rate. If a premium rate is applied, this should be clearly disclosed.
Where a sales promotion includes a prize promotion, the following information should be given to consumers, and be available prior to participation and not conditional on purchasing the main product:
The remaining articles of this chapter, A7 to A10 inclusive, are not included for reasons of space. They can be found in the 2024 ICC Code here. These cover:
A7. Presentation to Intermediaries
A8. Particular Obligations of Promoters
A9. Particular Obligations of Intermediaries
A10. Responsibility
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
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
— products supplied in the course of the provision of a service
— sales by auction and sales of works of art and antiques
Article 4
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
Article 6a
1. Any announcement of a price reduction shall indicate the prior price applied by the trader for a determined period of time prior to the application of the price reduction
2. The prior price means the lowest price applied by the trader during a period of time not shorter than 30 days prior to the application of the price reduction
3. Member States may provide for different rules for goods which are liable to deteriorate or expire rapidly
4. Where the product has been on the market for less than 30 days, Member States may also provide for a shorter period of time than the period specified in paragraph 2
5. Member States may provide that, when the price reduction is progressively increased, the prior price is the price without the price reduction before the first application of the price reduction
ADVICE AND CLEARANCE
The German self-regulatory system has two organisations:
​
COMPLAINTS HANDLING
​
COPY ADVICE
Website:
https://www.wettbewerbszentrale.de/de/home/
Information in English:
https://www.wettbewerbszentrale.de/de/informationenglfranz/engl/
COMPLAINTS HANDLING
COPY ADVICE
CLEARANCE
Direct to broadcaster
Allow 3-5 days TV/VOD
For help contact the Traffic Bureau administration@trafficbureau.net
The ICAS Global SRO database
https://icas.global/srodatabase/
EASA (European Advertising Standards Alliance)
https://www.easa-alliance.org/
EASA membership
https://www.easa-alliance.org/members/
Link to Best Practice Recommendations
https://www.easa-alliance.org/publication/best-practice-recommendations/
EASA Digital Marketing Communications Best Practice Recommendation
EASA Best Practice Recommendation on Online Behavioural Advertising
https://www.easa-alliance.org/publications/easa-best-practice-recommendation-on-oba-2021/
EASA Best Practice Recommendation on Influencer Marketing
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 comes into force in May 2018.
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R0679&from=en
Articles relating to Children are Nos. 8 and 12, and Recitals 38 and 58. These have been assembled here:
https://www.g-regs.com/downloads/CHEUGDPRrefs.pdf
European Data Protection Authority
Article 29 Working Party/ EDPB
The Article 29 Working Party was established under Article 29 (hence the name) of Directive 95/46/EC, the Personal Data Protection Directive. The arrival of the GDPR heralded the demise/ re-working of A29WP, and its replacement by the European Data Protection Board:
All documents from the former Article 29 Working Party remain available on this newsroom.
Article 29 Working Party archives from 1997 to November 2016:
http://ec.europa.eu/justice/article-29/documentation/index_en.htm.
EU Framework of law for children’s rights:
http://www.europarl.europa.eu/RegData/etudes/note/join/2012/462445/IPOL-LIBE_NT(2012)462445_EN.pdf
UN Convention on the Rights of the Child
http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx
Art 161. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honour and reputation
UCPD
Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 The ‘Unfair Commercial Practices Directive’, known as the UCPD. This is the core consumer protection legislation from the EU, transposed in all member states, and in France placed in the Consumer Code (see entry below). Provisions address misleading commercial practices and include a number on commercial communications. Key is Annex I which lists a number of practices that are “in all circumstances considered unfair.” No. 28 prohibits in advertising a direct exhortation to children to buy advertised products or persuade their parents or other adults to do so for them:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:149:0022:0039:en:PDF
AVMSD
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 (Audiovisual Media Services Directive). Article 9: 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.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32010L0013
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 by WBZ 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. Child-specific rules are from the Annex ‘blacklist, point 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;’ Section 4a Aggressive Commercial Practices is also invoked in some cases as it references age and ‘inexperience in commercial dealings’.
DE: http://www.gesetze-im-internet.de/uwg_2004/BJNR141400004.html
EN: https://www.gesetze-im-internet.de/englisch_uwg/englisch_uwg.pdf
Broadcasting and telemedia
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 emended 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. We await an official translation
Implementation
Statute for the implementation of the advertising regulations of the Media State Treaty. As at February 2021
Labelling in online media
State Media Authorities. Guidelines for labelling advertising in online media (May 2022). ‘These guidelines issued by the media authorities provide assistance with the labelling requirements for advertising on social media (Instagram, Twitter, Facebook, YouTube, TikTok, Twitch etc.) and other online media, such as blogs and podcasts. They are based solely on the advertising regulations established in the German Interstate Media Treaty (MStV) and German Telemedia Act (TMG), which serve to protect users from being misled and to make commercial content transparent. Video and audio offerings are governed by different labelling requirements compared to image/text offerings, so a distinction must be made between the two.' The DE version below is marked 2023, where the EN version is May 2022. We have not yet checked for any changes.
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, from September 2002. This is a treaty between all the German federal states and establishes the legal basis for the protection of minors in electronic media. It 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 JMStV (EN, as amended 2020), protection of minors in advertising and teleshopping, which relates largely to commercial communications' content rules, 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 translation of article 6:
http://www.g-regs.com/downloads/DEJMStVArt62020EN.pdf
Note: as far as we can establish the guidelines linked below have not yet (Feb 2021) been updated to reflect amendments to the JMStV
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, for example dimensionalising exhortation so that advertising ‘which merely contains a description of direct purchasing requirements will be considered to be direct exhortation....Inexperience and gullibility will be presumed in children’. Amended in 2019, article 4.1 extends the scope and 4.6 ‘especially prohibits’ providing a benefit in return for watching advertising and linking profiles to another platform.
Amend; article 4 (formerly article 7) translation. Note: amends to this article have not been professionally translated; see DE original and take advice if uncertain, as this is sensitive territory:
https://www.g-regs.com/downloads/DEYouthProtectionGuidelinesFig.7ENAmend2019.pdf
Previous version EN translation
https://www.g-regs.com/downloads/DEYouthProtectionGuidelinesFig.7EN.pdf
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
Online information
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 means ‘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. Applies some provisions from the amended AVMS Directive 2010/13/EU; see below. The influential DSK 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)
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
Data protection: BDSG
The new German Federal Data Protection Act (Bundesdatenschutzgesetz BDSG-neu). The arrival of The General Data Protection Regulation 2016/679 , which applied directly in EU member states from 25 May 2018, repealed the Data Protection Directive 95/46/EC, which had been reflected in the BDSG. The Act to Adapt Data Protection Law to Regulation (EU) 2016/679 and to Implement Directive (EU) 2016/680 of 30 June 2017 (Gesetz zur Anpassung des Datenschutzrechts an die Verordnung (EU) 2016/679 und zur Umsetzung der Richtlinie (EU) 2016/680) recognises and ‘flanks’ the GDPR and sets out the New Federal Data Protection Act. The new BDSG includes a number of complementary provisions that cover e.g. the way in which certain public bodies handle personal data, and sets out rules on employee data protection, though largely reflecting former rules.
The new law In German:
http://www.g-regs.com/downloads/DEBDSGnew.pdf
And an official translation In English:
This commentary from Intersoft Consulting is thorough:
https://dsgvo-gesetz.de/bdsg-neu/
Regulatory authorities
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 self-regulatory codes. The Wettbewerbszentrale (see below) focuses on the statutory requirements of commercial practice. 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
WBZ
Central Office for Protection against unfair competition. The Wettbewerbszentrale - in full the Zentrale zur Bekämpfung unlauteren Wettbewerbs - 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 Article 33 (4.1) Law against Restraints on Competition. English Information:
https://www.wettbewerbszentrale.de/de/informationenglfranz/engl/
Guidance Document: Overview of Direct Marketing EN / DE
DDOW
DDOW: German Data Protection Council for Online Advertising. Deutsche Datenschutzrat Online-Werbung (DDOW). Launched in November 2012, this is 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
Deutscher Dialogmarketing Verband – German Direct/ Dialog Marketing Association). Section 7. Offers to children and young persons DDV members will not take advantage in advertising aimed at minors of the natural credulity or lack of experience of this target group or exploit their dependence. If legal transactions effected by minors do not have the consent of their guardians, they are declared null and void. Codes etc. have recently been placed behind a pay/ membership wall so we can't confirm if they are up to date.
http://www.g-regs.com/downloads/DE_DDVCodeofEthics03.02.12_EN.pdf
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
Key articles for children’s marcoms are, from the General Principles, 18 and 19.4 (children’s personal data) and from Chapter C Direct Marketing and Digital Marketing Communications, article C7:
Additional ICC guidance and frameworks
Non-exhaustive
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:
https://iccwbo.org/news-publications/policies-reports/icc-guidance-on-native-advertising/
GDPR
Regulation (EU) 2016/679 of the European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR came into force on 25 May 2018.
https://eur-lex.europa.eu/eli/reg/2016/679/oj
The GDPR is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which was implemented in Germany by the new German Federal Data Protection Act; see later entry
European Data Protection Authority

Article 29 Working Party/ EDPB



The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC, the Personal Data Protection Directive. The arrival of the GDPR heralded the demise/ re-working of A29WP, and its replacement by the European Data Protection Board:
All documents from the former Article 29 Working Party remain available on this newsroom
Article 29 Working Party archives from 1997 to November 2016:
http://ec.europa.eu/justice/article-29/documentation/index_en.htm.

​
Five more recent, significant documents:
Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR. Adopted on 12 March 2019
Commercial practices: UCPD
Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ UCPD). This is the legislation that most impacts marketing and advertising in Europe and whose origins form the foundations of Self-Regulatory regimes. The core provisions relate to unfair commercial practices, defined as ‘likely to materially distort the economic behaviour with regard to the product of the average consumer.’ In turn, unfair commercial practices are those that:
Annex I (known as ‘the blacklist’) contains the list of those commercial practices which ‘shall in all circumstances be regarded as unfair’. These are the only commercial practices which can be deemed to be unfair without a case-by-case test (i.e. assessing the likely impact of the practice on the average consumer's economic behaviour). The list includes e.g. encouragement to children to ‘pester’ (28), clear identification of commercial source in advertorial (11) and making ‘persistent and unwanted solicitations’ (26). The UCPD includes several provisions on promotional practices e.g. Article 6 (d) on the existence of a specific price advantage, Annex I point 5 on bait advertising, point 7 on special offers, points 19 and 31 on competitions and prize promotion, and point 20 on free offers. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance: On 17 December 2021, the European Commission adopted the Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive (‘the UCPD Guidance’), updating the 2016 version.
The Omnibus Directive
Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. This directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', sets out some new information requirements related to search rankings and consumer reviews under the UCPD 2005/29/EC, new pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful explanatory piece on the Omnibus Directive 2019/2161 from A&L Goodbody via Lexology here. Provisions are supposed to be transposed by November 2021 and in force in member states by May 28, 2022. Transpositions in Germany are shown under national legislation below.
https://eur-lex.europa.eu/eli/dir/2019/2161/oj
Pricing
Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked above; these are supposed to be transposed by November 2021 and in force in member states by May 28, 2022. The article concerned, 6a, is extracted here. Commission guidance on its application is below this entry.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006
Commission notice: Guidance on the interpretation and application of Article 6a of Directive 98/6/EC of the European Parliament and of the Council on consumer protection in the indication of the prices of products offered to consumers; December 2021:
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52021XC1229(06)&from=EN
Comparative advertising
Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising. Article 4 of the MCAD provides that comparative advertising is permitted when eight conditions are met. The most significant of those for our purposes are a) it is not misleading within the meaning of Articles 2 (b), 3 and 8 (1) of this Directive or articles 6 and 7 of Directive 2005/29/EC (see above) and b) it compares goods or services meeting the same needs or intended for the same purpose. There are other significant conditions related to denigration of trademarks and designation of origin, imitation and the creation of confusion. Codified version:
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0114
Audiovisual media
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states. From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32010L0013
AVMSD amendment
Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended.
Article 28b addresses video- sharing platform providers (VSPS), containing requirements to prevent violent, criminal, or otherwise offensive material and bringing the 'general' AV commercial communication rules such as those for the environment, human dignity, discrimination, minors etc. into these platforms. VSPS must also provide a functionality for users who upload user-generated videos to declare whether they contain commercial communications as far as they know or can be reasonably expected to know; VSPS must accordingly inform users. There has been some debate as to whether vloggers/ influencers are in scope, i.e. they or their output constitute an audiovisual media service. Definitive opinion/ recommendation is from the European Regulators Group for Audiovisual Media Services (ERGA) paper 'Analysis and recommendations concerning the regulation of vloggers.' The annex of the paper contains national examples. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020.
https://eur-lex.europa.eu/eli/dir/2018/1808/oj
e-Privacy
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, the ‘E-privacy Directive’). This Directive ‘provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector.’ The directive was amended by Directive 2009/136/EC; the ‘Cookie directive’, provisions found under article 5.3 of the E-Privacy Directive. Article 13 for Consent and ‘soft opt-in’ requirements
https://eur-lex.europa.eu/eli/dir/2002/58
The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector. Article 2 provides amends to the E-privacy Directive above
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136
Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications):
https://data.consilium.europa.eu/doc/document/ST-6087-2021-INIT/en/pdf
Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
https://edpb.europa.eu/sites/default/files/files/file1/edpb_statement_20201119_eprivacy_regulation_en.pdf
February 2022 Clifford Chance/ Lex E-Privacy check-in: where we are, and where we're headed
March 2022 Härting Rechtsanwälte/ Lex ePrivacy Regulation: EU Council agrees on the draft
e-Commerce
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'). ‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.’ Article 5 covers general information such as contact details from the ‘service provider’, which information should be made ‘easily, directly and permanently accessible to the recipients of the service’. The Directive also sets out under article 6 more specific information requirements for commercial communications which are part of, or constitute, an information society service. These include identifiability requirements and accessibility to conditions for promotions.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0031
The Digital Services Act
Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act). European Commission pages on the DSA are here. Wikipedia entry is here. Helpful legal commentary, which also addresses the Digital Markets Act, is from DLA Piper/ Lex February 2023: Online advertising: A regulatory patchwork under construction. Key marcoms issues for advertisers/ platforms are the identification of advertising material and parameters used for its targeting and the prohibition of advertising based on profiling that uses using special data categories such as religious belief, health data sexual orientation etc. (art.26), or if the platform has reason to believe the recipient is a minor (art. 28). The Regulation applies from February 2024.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32022R2065
The Digital Markets Act
Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act). European Commission pages are here; from those: 'Some large online platforms act as "gatekeepers" in digital markets. The Digital Markets Act aims to ensure that these platforms behave in a fair way online. Together with the Digital Services Act, the Digital Markets Act is one of the centrepieces of the European digital strategy.' Wikipedia entry is here. Article 2a prohibits the processing, for the purpose of providing online advertising services, personal data of end users using services of third parties that make use of core platform services of the gatekeeper, unless the end user has been presented with the specific choice and has given consent within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679. The Regulation entered into force on 1st November 2022 and applied on 2nd May, 2023. Gatekeepers will be identified and they will have to comply by 6th March 2024 at the latest.
https://eur-lex.europa.eu/eli/reg/2022/1925
UWG
Act Against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb - UWG). The act aims to protect competitors, consumers and other market participants against unfair acts of competition. Described as advertising’s most important law, UWG implements the Unfair Commercial Practices Directive UCPD 2005/29/EC and Directive 2006/114/EC on misleading and comparative advertising. It also implements article 13 of the E-Privacy Directive 2002/58/EC on unsolicited commercial communications. It is not the state authorities that intervene in the event of unfair marketing practices, but competitors, trade associations, chambers of commerce and consumer organisations. According to § 8 UWG these parties have a legal right to take action against unfair commercial practices in the form of ‘injunctive relief’, such as a cease and desist order. The most significant institution to initiate proceedings against companies who infringe unfair competition law is the Centre for Protection against Unfair Competition (WBZ), which accepts complaints from consumers, competitors, and public authorities, as well as initiating its own investigations.
DE: https://www.gesetze-im-internet.de/uwg_2004/
EN: https://www.gesetze-im-internet.de/englisch_uwg/englisch_uwg.html
English translation as of April 2019
The UWG was amended by the Law to strengthen consumer protection in competition and trade law of August 17, 2021; this act inter alia transposes Directive 2019/2161/EU, which covers significant commercial territory such as price reductions (see below under Pricing) and the validity of consumer reviews and search rankings but does not necessarily hugely impact the content of commercial communications. There are implications for Influencer messaging, however, for 'invitations to purchase' and potentially for the way in which brands are presented multinationally. Section 5 of the UWG has this addition: 'A commercial act is also misleading if it is used to market a product in a member state of the European Union as identical to a product made available on the market in other European Union Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors.' Provisions in force May 28, 2022.
www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&jumpTo=bgbl121s3504.pdf (DE)
Explanatory GRS note in English:
www.g-regs.com/downloads/DEGenUWGAmendsAug2021ENnote.pdf
Pricing
Price Indication Ordinance. Preisangabenverordnung (PAngV). This law transposes Directive 98/6/EC on consumer protection in the indication of the prices of products offered to consumers. The purpose of the law is to establish ‘unit’ pricing procedures in pre-packed goods, open packs or as sales units without wrapping by weight, volume, length or area, in addition to the total price and the unit price including sales tax and other price components to be paid (total prices). The ‘parent’ Directive was referenced in a significant ECJ judgement on car pricing in advertising:
https://www.gesetze-im-internet.de/pangv_2022/BJNR492110021.html (DE)
The Ordinance amending the Price Indication Ordinance of November 2021 (Verordnung zur Novellierung der Preisangabenverordnung) transposes the amends made by the Directive 2019/2161/EU (see article 2) to the Product Pricing Directive 98/6/EC. These amends introduce, inter alia, some promotional pricing rules under Section 3/11 of the ordinance, set out in the extract from the 2019/2161 Directive here. Provisions in force May 28, 2022. Helpful December 2021 article explaining the rules and sanctions from CMS Germany here.
http://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&jumpTo=bgbl121s4921.pdf (DE)
Online
Telemedia Act (Telemediengesetz or TMG). The TMG implements E-commerce Directive 2000/31/EC and regulates the use of consumers’ personal data generated through electronic means. Telemedia is defined here as ‘all electronic information and communications services, unless they are telecommunications services …or broadcasting’ (S.1 (1) TMG). Applies to the provision of online services such as websites and email; also covering search engines, news groups, webshops, chat rooms, and social media. Information obligations are in S.5 re legal notice/ Imprint and S.6.1 information to be provided in commercial communications. The DSK (see entry below) opinion is that data protection Sections 12, 15 (1) and 15 (3) TMG ceased to be applicable when the GDPR came into effect. Hence, in the absence of a lex specialis, the provisions of the GDPR apply by default. Piece from Covington and Burling. Below EN link unofficial and non-binding translation of key provisions related to the provision of information in commercial communications:
https://www.gesetze-im-internet.de/tmg/BJNR017910007.html (DE)
http://www.g-regs.com/downloads/DE_TelemediaActTMG2020amendENb.pdf (EN key clauses)
Law amending the Telemedia Act and other laws (Gesetz zur Änderung des Telemediengesetzes und weitere Gesetz) in force 26 November 2020. This act applied to the TMG some of the amends Directive 2018/1808 made to the AVMSD 2010/13/EU. The Directive expands the definition of an audiovisual media service so that e.g. some forms of video-sharing platforms come into scope and are required to identify commercial communications in user-uploaded videos; see section 6 in the linked file. There’s some helpful context from the EU co-ordination note in English here. Meanwhile, the amending act is here (DE) and the Telemedia act also in German (key clauses translated above) is linked below:
https://www.gesetze-im-internet.de/tmg/BJNR017910007.html
General supervisory authority: individual state media authorities are responsible for the enforcement of S. 5 (1) imprint obligation, and S. 6 (2) which constitutes an offence under S. 16 (1) and S. 16 (2) No. 1 TMG. List of all responsible authorities here:
http://www.jurpc.de/jurpc/show?id=20100171
AV/ broadcasting
The State Media Treaty Medienstaatsvertrag (MStV), in force 7 November 2020, replaces the State Broadcasting Treaty (RStV) and extends scope from principally broadcast media, into more telemedia, media platforms and media intermediaries. These include, for example, online audio and video libraries, Internet search engines, streaming providers and online social networks. (From the website of the ‘umbrella’ media authority Medienanstalten). There's a good explanation of the scope development from DLA Piper here. The treaty implements the requirements of the AVMSD, as amended by Directive 2018/1808, reflecting the ‘digitisation’ of European media regulation. The commercial communications content rules remain largely unchanged; amends from Directive 2018/1808 are here.
The guidelines below make extensive reference to RStV, now replaced, albeit the rules are anyway largely aimed at broadcasters and related to e.g. arrangements for sponsorship and product placement
TV Guidelines: Joint Directive of the German media authorities governing advertising, product placement, sponsorship and teleshopping on television in the version of 18 September 2012, Issued in accordance with Art. 46 RStV; applies solely to commercial broadcasting
Radio Guidelines: Common guidelines of the State Media Authorities; covers advertising, to separate advertising from programming, and for sponsoring and teleshopping on the radio (23/02/2010); applies solely to commercial broadcasting:
http://www.g-regs.com/downloads/DERadioGuidelinesGerman.pdf
http://www.g-regs.com/downloads/DERadioGuidelinesEN.pdf
Protection of minors
Interstate Treaty on the Protection of Human Dignity and the Protection of Minors in Broadcasting and in Telemedia, known as the Interstate Treaty on the Protection of Minors (Jugendmedienschutz-Staatsvertrag JMStV): In force from September 2002. This is a state treaty between all the German federal states and establishes the legal basis for the protection of minors in electronic media. The treaty applies to broadcast and telemedia as defined in the State Media Treaty (see above); explanation of the scope development from DLA Piper here. Key for our purposes is Article 6 (EN, as amended 2020), which relates largely to commercial communications' content rules for the protection of minors, and is transposed from the AVMS Directive 2010/13/EU and its amending Directive 2018/1808. To ensure a consistent application of the Treaty, a centralised body was established in 2003, the Commission for the Protection of Minors in the Media (Kommission für Jugendmedienschutz, KJM). The State Media Authorities execute the Commission’s decisions.
Youth Protection Guidelines (Jugendschutzrichtlinien JuSchRiL). The Common Guidelines of State Media Authorities to ensure the protection of human dignity and the protection of minors; In force 02/06/2005. These guidelines substantiate the legal requirements of JMStV above. Article 7 is specifically referenced in Clauses 2 (5) of the State Media Authorities on TV and Radio Advertising.
https://www.g-regs.com/downloads/DEYouthProtectionGuidelinesFig.7ENAmend2019.pdf (EN key clause only)
Youth Protection Act of 23 July 2002, last amended by Article 1 of the Act of April 9, 2021. Jugendschutzgesetz (JuSchG). 'The change to the German legislation, which was last reformed in 2002, is long overdue, as the old regulations are no longer up to the challenges posed by digitalization and the changed living environments of children.' From LSE blog here. Children and young people will be represented in an advisory board that will be established at the new Federal Agency for the Protection of Minors in the Media. Article 11 of the Act provides restrictions on children and young people’s viewing of films and associated advertising. In German:
https://www.gesetze-im-internet.de/juschg/BJNR273000002.html
Social media guidelines
Guideline of the Media Authorities. Labelling of advertising in online media ‘These guidelines issued by the media authorities provide assistance with thelabelling requirements for advertising on social media (Instagram, Twitter, Facebook, YouTube, TikTok, Twitch etc.) and other online media, such as blogs and podcasts. They are based solely on the advertising regulations established in the German Interstate Media Treaty (MStV) and German Telemedia Act (TMG), which serve to protect users from being misled and to make commercial content transparent. Video and audio offerings are governed by different labelling requirements compared to image/text offerings, so a distinction must be made between the two.'
Data protection: BDSG
The new German Federal Data Protection Act (Bundesdatenschutzgesetz BDSG-neu). The arrival of The General Data Protection Regulation 2016/679 , which applied directly in EU member states from 25 May 2018, repealed the Data Protection Directive 95/46/EC, which had been reflected in the BDSG. The Act to Adapt Data Protection Law to Regulation (EU) 2016/679 and to Implement Directive (EU) 2016/680 of 30 June 2017 (Gesetz zur Anpassung des Datenschutzrechts an die Verordnung (EU) 2016/679 und zur Umsetzung der Richtlinie (EU) 2016/680) recognises and ‘flanks’ the GDPR and sets out the New Federal Data Protection Act. The new BDSG includes a number of complementary provisions that cover e.g. the way in which certain public bodies handle personal data, and sets out rules on employee data protection, (though largely reflecting former rules). The new law In German:
http://www.g-regs.com/downloads/DEBDSGnew.pdf
And an official translation In English:
This commentary from Intersoft Consulting is thorough:
https://dsgvo-gesetz.de/bdsg-neu/
In May 2021, the Bundestag approved the Telecommunications-Telemedia Data Protection Act (TTDSG; DE). The privacy provisions from the Telecommunications Act and the Telemedia Act are merged in this new main law, which will be in line with GDPR and the Eprivacy Directive 2002/58/EC. Section 25 for specifics on cookies; the TTDSG entered into force December 1, 2021.
Federal Commissioner for Data Protection and Freedom of Information (Bundesbeauftragter für den Datenschutz und die Informationsfreiheit). Oversees data protection compliance within the federal public sector (Federal ministries, the Federal Employment Agency and other federal agencies, and the Federal Police) and (private) telecommunications and postal services companies. There are 16 state data protection authorities which oversee and enforce data protection compliance by private (except telecommunications and postal services) and public sector companies established in their state.
https://www.bfdi.bund.de/EN/Home/home_node.html
DSK
The Conference of German Data Protection Officers of the Federal Government and Federal States (DSK/ ‘Datenschutzkonferenz’ - Konferenz der Datenschutzbeauftragten des Bundes und der Länder) is an independent German advisory body on data protection and privacy. The conference is made up of the Federal Data Protection Commissioner and the Data Protection Commissioners of 16 Federal States. The DSK publishes guidelines for the GDPR, issuing 11 working papers to date; the 3rd is a guidance paper on processing personal data for marketing/ advertising purposes (see below). The DSK announced that provisions on data processing for marketing purposes in the Federal Data Protection Act will become obsolete due to the GDPR. In future, the main legal basis for data processing for marketing purposes will be consent, as provided for in Articles 6 (lawfulness of processing) and 7 (conditions for consent) of the GDPR. Guidance paper (DE) on the processing of personal data for marketing/ advertising purposes. From Covington January 2022: On 22 December 2021, DSK published its Guidance for Providers of Telemedia Services (Orientierungshilfe für Anbieter von Telemedien). Particularly relevant for providers of websites and mobile applications, the Guidance is largely devoted to the 'cookie provision' of the German Telecommunication and Telemedia Privacy Act (TTDSG), which came into force on 1 December 2021. The publication focuses on the consent requirement for cookies and similar technologies, as well as relevant exceptions, introduced by the law; full article with extracts of the DSK guidance in English here and the guidance (in German) here.
https://www.datenschutzkonferenz-online.de/
The Civil Code
German Civil Code (BGB - Bürgerliches Gesetzbuch). In the version published on 2 January 2002. Sections 312 (i) and (j) cover obligations in electronic commerce. Implements articles 10, 11 of E-Commerce Directive 2000/31/EC relating to special duties for businesses regarding the conclusion of contracts by electronic means. The Civil Code has also recently been amended to incorporate the provisions of the Consumer Rights Directive 2011/83/EC
German version: http://www.gesetze-im-internet.de/bundesrecht/bgb/gesamt.pdf
English version: http://www.gesetze-im-internet.de/englisch_bgb/
Freedom of advertising speech
The Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland – GG). The Basic Law is the constitution of the Federal Republic of Germany. Article 5 'Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures, and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.’ guarantees freedom of speech, expression, and opinion, which right extends to advertising, seen under Art. 12 GG occupational freedoms, whilst the content of the expression is dealt with under Art. 5.1 GG freedom of expression. Key cases the Federal Constitutional Court (BVerfG): Benetton I case (Judgment of 12 December 2000 - 1 BvR 1762/95) and Benetton II case (Decision of 11 March 2003 - 1 BvR 426/02). The decisions established that the protection afforded in Art. 5 (1) extends to commercial expressions of opinion/ statements as well as purely commercial advertising (para. 40 Benetton Case I)
https://www.gesetze-im-internet.de/gg/ (DE)
https://www.gesetze-im-internet.de/englisch_gg/index.html (EN)
German Advertising Standards Council Deutscher Werberat; one of the two Self-Regulatory Organisations in Germany, DW deals with taste, decency and social responsibility issues via application of various codes. The Wettbewerbszentrale (see below) focuses on the statutory requirements of commercial practice. Deutscher Werberat is an institution of the 45 organisations represented by the German Advertising Federation (ZAW), which is funded by participants in the advertising market. DW is a founding member of EASA and ‘implicitly adheres’ to the ICC Code
DW operates a number of sector-specific codes as well as more general codes/ guidelines for commercial communications in English here; the codes are applicable to all media (except where identified), including online per this statement in 2011 DE / EN. Below is a selection:
WBZ
Central Office for Protection against unfair competition (Wettbewerbszentrale - WBZ). The Wettbewerbszentrale - in full the Zentrale zur Bekämpfung unlauteren Wettbewerbs, English Information here - is a trade association that enforces statutory law if competition rules are infringed. It is responsible for issues of misleading advertising and unfair competition. In essence, it applies the law as opposed to a Self-Regulatory code, as in the case of Deutscher Werberat; the WBZ is judicially authorised to initiate legal action against those who infringe laws on unfair competition under article 8 (3) (2) UWG and also Art. 33 (4.1) Law against Restraints on Competition
Guidance documents
DDOW
DDOW: German Data Protection Council for Online Advertising. Deutsche Datenschutzrat Online-Werbung (DDOW). The Self-Regulatory body of the digital advertising industry for OBA in Germany, in the wake of the IAB Europe/ EDAA Framework on OBA and in line with similar initiatives in other European countries, as well as a broader data protection remit. The DDOW is under the auspices of ZAW:
https://zaw.de/selbstregulierung/deutscher-datenschutzrat-online-werbung-ddow/
DDV
DDV, German Dialogue Marketing Association Deutscher Dialogmarketing Verband. The DDV represents the interests of service providers and advertisers throughout the direct marketing industry. It operates through its various councils (now known as competence centres) who draft the various codes. These are not binding for non-members of the association, and often go beyond the statutory provisions. The relevant ethical codes can be found here under the Quality assurance section of the DDV website:
https://www.ddv.de/verband/qualitaet/ehrenkodizes.html
Opt-out registers/ Robinson list
DDV Robinson List. Founded in 1971 by the Deutscher Dialogmarketing Verband e. V. (DDV), German Dialogue Marketing Association, as a voluntary institution of the advertising industry. Non-member companies can purchase the DDV Robinson list and download latest file from the Internet. As an alternative to the DDV Robinson list, a combination Robinson list DDV / IDI (advertising refusal post mailings) is available. Brochure (In German) for companies:
https://www.ddv.de/fileadmin/user_upload/pdf/Branche/DDV-Flyer_Robinsonliste.pdf
EASA
The European Advertising Standards Alliance is a non-profit organisation based in Brussels; it brings together national advertising self-regulatory organisations (SROs, such as the ARPP) and other organisations representing the advertising industry in Europe and beyond. EASA is "the European voice for advertising self-regulation". The following link provides access to alliance membership:
http://www.easa-alliance.org/members
EASA’s Best Practice recommendations
Digital Marketing Communications (2023)
Online Behavioural Advertising (2021)
Influencer Marketing (2023)
IAB Germany/ Europe
The Bundesverband Digitale Wirtschaft (BVDW) e.V. (from their website) 'is the organisation that represents the interests of companies in the field of interactive marketing, digital content and interactive added value. Within the BVDW the OVK (Online-Vermarkterkreis or Circle of Online Marketers) is the central body of online marketers in Germany. Nineteen of the largest German online marketers have come together to raise the profile of online advertising.'
https://www.iabeurope.eu/directory-member/bvdw-iab-germany/
WFA
The ‘GDPR Guide for Marketers’ from the WFA (World Federation of Advertisers)
http://info.wfa.be/WFA-GDPR-guide-for-marketers.pdf
The WFA launched their Planet Pledge in April 2021
And Global Guidance on Environmental Claims April 2022
ESA
The European Sponsorship Association is here:
EU GUIDANCE
Environmental claims
Guidance on the interpretation and application of Directive 2005/29/EC of the European Parliament and of the Council concerning unfair business-to-consumer commercial practices in the internal market. December 2021. The purpose of this document is to facilitate the proper application of Directive 2005/29/EC on unfair business-to-consumer commercial practices. It provides guidance on the UCPD’s key concepts and provisions and examples taken from the case law of the Court of Justice of the European Union, and from national courts and administrations. A specific section on the application of the UCPD to environmental claims is under Section 4.1
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52021XC1229(05)
ICC Advertising and Marketing Communications Code 2024. In September 2024, the International Chamber of Commerce introduced the newly revised Advertising and Marketing Communications Code (the Code). From the website: '11th Code revision – significant changes: The rapid evolution of technology and technologically enhanced marketing communications and techniques means that producing responsible marketing communications that are trusted in a digital world has continued to be important for companies in preserving their ‘license to operate’. For this reason, the 11th revision addresses both the Code’s usability and its applicability to technology enhanced marketing communications and techniques. It sets a gold standard for modern rule-making in our digital world by addressing the role of people, organisations, software and machines. Significant changes include:
This Code revision has been informed by the latest industry rules and legal developments around the world, such as in the area of consumer protection, privacy and fair competition. The Code is designed to establish a sound ethical framework to govern marketing practices worldwide based on twin goals of fostering consumer fairness and trust, and the freedom of commercial communications.' The Code is organised into General Provisions and individual chapters Sales Promotion (A), Sponsorship (B), Direct Marketing and Digital Marketing Communications (C), Environmental Claims in Marketing Communication (D) and Children and Teens (E). Translation of the code is under way as at September 2024. Earlier translations of the former (2018) code can be found here.
https://iccwbo.org/wp-content/uploads/sites/3/2024/09/ICC_2024_MarketingCode_2024.pdf (EN)
Additional guides and frameworks (all EN)
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 on Native Advertising
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.
'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
February 2022. EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq. From that: 'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates the General Data Protection Regulation (GDPR). Further story here
IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era and in July 2021 the Guide to Contextual Advertising
IAB Europe's December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.'
ICAS
From their website: 'The International Council for Advertising Self-Regulation (ICAS) is a global platform which promotes effective advertising self-regulation. ICAS members include Self-Regulatory Organizations (SROs) and other national, regional and international bodies working to ensure that advertising and marketing communications are legal, honest, truthful and decent.' In December 2021, ICAS published the fourth edition of its Global SRO Database and Factbook.
EASA: European Advertising Standards Alliance
Best Practice Recommendation on Digital Marketing Communications (updated 2023): EASA revised its Best Practice Recommendation (BPR) on Digital Marketing Communications in 2023 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:
EASA Best Practice Recommendation on OBA (Revised Oct. 2021): 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:
https://www.easa-alliance.org/publications/easa-best-practice-recommendation-on-oba-2021/
EASA Best Practice Recommendation on Influencer Marketing 2023. 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 networks 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.
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.
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
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:
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.
More recent documents:
Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR. Adopted on 12 March 2019
Privacy/ cookies
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
Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications):
https://data.consilium.europa.eu/doc/document/ST-6087-2021-INIT/en/pdf
Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
https://edpb.europa.eu/sites/default/files/files/file1/edpb_statement_20201119_eprivacy_regulation_en.pdf
February 2022 Clifford Chance/ Lex E-Privacy check-in: where we are, and where we're headed
March 2022 Härting Rechtsanwälte/ Lex ePrivacy Regulation: EU Council agrees on the draft
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
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.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006
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: December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version.
The Omnibus Directive
Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. This directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', sets out some new information requirements related to search rankings and consumer reviews under the UCPD 2005/29/EC, new pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful explanatory piece on the Omnibus Directive 2019/2161 from A&L Goodbody via Lexology here. Provisions were supposed to be transposed by November 2021 and in force in member states by May 2022; some delays but all in place end 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
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
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 and there's a helpful piece from Simmons and Simmons LLP/ Lexology 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 s