Gambling

 

Uploaded August/ September 2019.

See individual countries for updates.

 

.

 

Germany

A. Overview

Sector

SECTION A OVERVIEW

 

Updates since Feb 2022:

ICLG Feb 2022 Gambling Laws and Regulations 

Melchers Rechtsanwälte May 2022 Intro to Gambling Law

Online ad labelling guidelines (EN) May 2022

Gemeinsame Glücksspielbehörde der Länder (GGL) July 2022

DLA Piper's Gambling Laws of the World Sept 2022

German Gaming Law - Update 2021 / 2022

Taylor Wessing October 12, 2022 (EN)

GGL and unauthorised advertising (DE) Feb 8, 2023

2023 De Gambling Law update October 4, 2023 here 

GGL awards ad study (DE) Dec 12, 2023

German Gambling Law – Update 2024

Taylor Wessing August 30, 2024 (EN)

 

Spain Supreme Court overturns gambling ad restrictions

igaming business April 10, 2024. Placed here for European context

 

CONTEXT

 

These are the marcoms rules for the gambling sector in Germany. The summary below covers the key points. See content section B and channel section C for full information. Text for each country that we cover is generally reviewed by the relevant Self-Regulatory Organisation (SRO); Germany is the sole exception. For that reason, we are less secure about the data on these following pages, though as with other countries we can state with some certainty that we have provided the current and immediately available data. The regulatory landscape for gambling and therefore gambling marcoms across Europe is in some flux, however, and Germany is a particularly sensitive and relatively recently regulated example. Seek specialist advice unless your requirements are straightforward and short-term. This is a helpful General introduction to gambling law in Germany, courtesy of Melchers Rechtsanwälte/ Lex May 30 2023, and ICLG's February 2022 Gambling Laws and Regulations is a solid overview. See also DLA Piper's Gambling Laws of the World (EN; Sept 2022), which includes an entry on Germany.

 

SELF-REGULATION

 

An important influence in gambling advertising regulation in Germany is the (February 2012) Gambling Code (EN) (DE) from the authority Deutscher Werberat (DW), which covers familiar ground in gambling advertising, priorities being responsible behaviour in the way in which gambling and gamblers are depicted, and protection of minors. The rules are set out in full in our content section B, or see the linked document. DW Guidance associated with the rules is helpful; here in German, (unofficially) translated here.

 

LEGISLATIVE DEVELOPMENTS 

 

Gambling law in Germany has largely been the responsibility of the 16 ‘Länder’ or states. The Interstate (Federal) Treaty on Gambling 2012 (DE) was the principal statute covering both terrestrial and online gambling. Primary objectives are familiar: the prevention of unregulated and fraudulent gambling, the protection of minors and the ‘creation of conditions that fight addiction’. The Third Gambling Treaty Amendment (DE), which removed the controversial cap on numbers of licenses, but retained a ban of online casino offers, was approved by all the states in March 2019. Online Sports betting was permitted (most commentators use the term ‘tolerated’) under the 2012 treaty; applications for further licenses will be permitted ‘later in 2019’; the treaty entered into force on 1st January 2020. From Gaming in Germany: overview by Melchers Law, under the auspices of Practical Law: “Sports betting licences under the Third Amendment Treaty are supposed to be valid until 30 June 2021, with an option for them to be further extended until 30 June 2024, if the experimental phase is further extended. However, the Third Interstate Treaty has been referred to as only a transitional solution. As of July 2021, the German states are planning to introduce a new regulative framework. The experimental phase is intended to provide the basis for an evaluation of whether opening the sports betting market to private operators is effective in combatting the black market and ensuring consumer protection.”

 

Germany’s 2021 State Treaty on Gambling (DE; Glücksspielstaatsvertrag 2021 – GlüStV 2021) came into force on 1st July 2021. The EU notification file carrying a draft in English is downloaded here. Advertising requirements from that file are here. There’s a helpful article outlining the key points from DLA Piper/ Lexology here, including a summary of advertising provisions.

 

LEGISLATION IN GAMBLING MARKETING/ ADVERTISING 

 

Section 5 of the Interstate treaty linked above provides that:

 

  • Advertising must be in line with the objectives set out in Section 1 (protection of minors, avoidance of fraudulent and unregulated gambling, the creation of conditions that fight addiction)
  • Advertising must not be directed at minors or similarly vulnerable groups
  • Misleading advertising, especially that containing inaccurate statements about the odds or type and amount of winnings, is prohibited
  • Television and online advertising is not permitted except for lotteries and sports betting (including horse racing)
  • Advertising sports betting on television immediately before or during the live broadcast of sporting events is not permitted
  • Advertising for sports betting with active athletes and officials is not permitted

 

Section 5 extracted is here (EN). See also 'New Gambling Advertising Rules' (EN) from Gambling Insider March 2022 which carries news from Melchers Law of 'expected future restrictions and requirements' said to be emanating from the authority in the form of an advertising directive. These requirements do not appear to be available on the authority's website at the time of research (Summer 2022).

 

GAMBLING AUTHORITY 

 

Section 9 of the Interstate Treaty set out the requirement for and the role of a state gambling authority; the Glücksspielkollegium was duly established, with one of its duties being the regulation of the promotion of games of chance. However: “The Interstate Treaty provides for a Gambling Committee consisting of representatives from all German states and which was, among other things, involved in the decision-making process during the sports betting licensing process and the drafting of the Advertising Guidelines. The role of this committee has been called into question and its lack of constitutionality has been confirmed by multiple German courts.” (From the Gaming in Germany overview linked above). Status as at May 2022: 'While the Regional Council of Darmstadt in the state of Hesse is responsible for conducting the sports betting licensing process in Germany, the State Administration Office of Saxony-Anhalt is in charge of the virtual slot machine and online poker licensing process. Both authorities will lose their competency on 31 December 2022. After this date, the competency will switch to the Joint Gambling Supervisory Authority in Halle.' (From the Melchers article linked above under 'Context'). Accordingly, the Gemeinsame Glücksspielbehörde der Länder (Gambling Authority of the Federal States of Germany) has established a website here. From that: 'The GGL shall already be taking legal action against illegal gambling providers and the advertising for such services with effect from 1 July 2022.'

 

RESPONSIBILITY/ MINIMUM AGE/ INFORMATION MESSAGING

 

We have been unable to trace a current source of mandatory requirements to include minimum age, or 'Gamble responsibly' statements in advertising. We are assuming these came from the authority referenced above, as major advertisers include some messaging in their television advertising; example from Bwin here. This states: ‘Information under Bwin.com. Gambling can be addictive. Minimum age 18. Help under Glucksspielhilfe.de' (Gambling help). Section 7 of the Interstate treaty requires that: ‘games of chance operators must provide players with information relevant to the game prior to the participation in the game; this includes e.g. win percentages and profit divisions.

 

GENERAL RULES: SELF-REGULATION 

 

It’s important that the rules for all product sectors, shown below under the General tab, are also understood; adjudications against gambling advertising will frequently be based on general misleadingness or taste and decency rules, for example. The principal source of rules for all advertising content is the Self-Regulatory Organisation (SRO) Deutscher Werberat whose more relevant codes include:

 

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

Code against Personal Denigration and Discrimination (July 2014) EN / DE; and

.

LEGISLATION IN GENERAL RULES 

 

The law plays a more significant role in German advertising than for most other European countries, and is administered by the second of the two SROs Wettbewerbszentrale; their role here (EN). 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.

 

CHANNEL

 

There is a strict requirement across all channels that gambling advertising must not be directed at minors or similarly vulnerable groups and advertising sports betting on television immediately before or during the live broadcast of sporting events is not permitted (2021 Interstate Treaty, S5). Otherwise, we have not found channel-specific rules for gambling, though there are significant general rules, i.e. those that apply to all sectors, gambling included. A snapshot follows, and section C carries the main requirements. 

 

Some of the commercial online landscape for all product sectors, gambling included, is covered by The Telemedia Act (DE as amended 2020; EN key clauses) which, in an e-Commerce context, requires information to be provided per section 6 of the linked file. The State Media Treaty MStV (DE / EN) and the Interstate Treaty on the Protection of Minors JMStV (DE / article 6 EN 2020) incorporate online/ telemedia as well as broadcasting services; the latter obviously addresses children/ young people in particular - article 6 covers the protection of minors in advertising and is transposed from the AVMS Directive. Also relevant is article 4 (EN) of the Youth Protection Guidelines JuSchRiL which substantiate/ extend the legal requirements of JMStV. Finally, Guidelines for labelling advertising in online media (May 2022; EN): these guidelines from the State Media Authorities apply to all sectors and are therefore shown under the General tab below, but as it is recent and on a topical issue relevant to the sector, we highlight it here.

 

 

 

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

General

SECTION A OVERVIEW

 

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

 

KEY ISSUES / NEWS 

 

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' (DEEN) from the state media authorities; press release here (DE). This distinguishes by medium and separates video and audio (for podcasts). Further significant development is the September 2021 German Federal Court of Justice decision outlined by Hogan Lovells, suggesting a very specific case-by-case approach by the courts. This November 2021 article from the World Trademark Review also via Lexology covers similar ground and refers to the UWG amendment referenced above. Finally, ERGA's 2021 Analysis and recommendations concerning the regulation of vloggers, also referenced below. Not quite finally: this Labelling as advertising in social media posts is an important piece from Hogan Lovells/ Lex July 27, 2022, explaining a judgement of the higher District Court of Frankfurt against an influencer and third party in the context of the amended version of the UWG and, for good measure, the State Media Treaty and the Telemedia Act. Definitely finally: DLA Piper's Influencer Marketing Guide of April 2022, which covers a number of jurisdictions including Germany, is here.

 

Audiovisual media 

 

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

 

Online privacy and information 

 

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.

 

 

 

................................................................
Read more

International

SECTION A OVERVIEW

 

Updates since Nov 2022 (slimmed)
 

DLA Piper Global Influencer guide 

Coke's aspirational claims are not actionable

FKK&S/ Lex November 20, 2022

Meta’s Ad Practices Ruled Illegal Under E.U. Law. Jan

Proposal for a Directive on Green Claims

Cheat sheet EU Digital Acts April 23, 2023

Green Initiatives mainly in Europe April 2023

Our assembly of some key EU 'green' requirements

A brief guide to EU institutions. April 25, 2023

Self-regulation globally. FKK&S April 27, 2023

EASA Influencer Disclosure pan-Europe July 2023

EU Influencer Legal Hub. Posted October 2023

IAB Cookie Readiness report February 2024

CJEU rules on IAB's TCF. Hunton March 8, 2024

Council Influencer conclusions May 14, 2024

Bird & Bird on the above May 31, 2024

EASA Policy Newsletter May 21 2024 Topics Influencers, airlines greenwashing, ADR, EU elections 

IAB Europe commitments, policy principles 2024-29

Osborne Clarke Aug 29 commentary on above here 

IMCO September 2024 newsletter Sept 30, 2024

Emerging Advertising Law Issues in Asia Pacific 

GALA September 24, 2024 (Aus, India, Japan, NZ)

Quarterly report from Global Advocate Nov 22, 2024 Markets UK, France, Neths, China, EU

EASA Policy Newsletter November 22, 2024 Topics Health/alcohol/ WHO, Digital agenda, AVMSD & minors, Online harm, AI

* Recommended read 

New ICC Code September 19, 2024

Press release here and key changes here 

 French trans November 7, 2024, SW here

 

ISSUES/ NEWS/ COMMENTARY

 

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 

 

ENVIRONMENTAL CLAIMS/ INFORMATION/ DD

 

 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.

 

More lawyer commentary

 

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

 

Corporate & financial reporting and due diligence

 

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 

  

INFLUENCER MARKETING 

 

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.

 

The USA

 

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.

 

India 

 

 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.

 

1. SELF-REGULATION: GENERAL RULES 
1.1 The ICC Code
 
The ICC Code is in the process of update May 2024. Expected 'second half 2024' :
 
This International sector provides largely self-regulatory rules that apply across several jurisdictions/ countries, so the content is the same under each country and product sector. For the time being, we are largely interpreting 'International' as Europe, though as the service expands, so will this section. The rules are primarily from the ICC, the International Chamber of Commerce, whose Advertising and Marketing Communications Code ('the Code'), the most recent version of which was announced in September 2024, underpins much of self-regulation worldwide.
 
Most countries feature national advertising self-regulatory codes which draw their main principles from the ICC Code, whilst a number of countries apply its provisions directlly - Belgium, Finland and Sweden, for example - so it can be regarded as a solid reflection of the regulatory picture across Europe and beyond. It would be very unlikely that any ICC rule would significantly differ from a specific country or sector clause addressing the same issue, but the latter may have more nuance or cultural context and will, of course, prevail as the principal source of regulation. So you can use these ICC rules in two ways: as a sound 'first pass' if you want a general picture of what you can or can't say across a number of countries, or as a surrogate for, and access to, countries that we don't currently cover and where rules may be inaccessible. The ICC provide several translations of their code (2024 to follow); ICAS, the International Council for Advertising Self-Regulation, list most if not all of the providers of self-regulation around the world. 
 
1.2 Guidance and EASA
 
Where the ICC is the principal source for 'umbrella' rules, another important source, in this case of advice and good practice, is EASA, the European Advertising Standards Alliance, which describes itself as the 'single authoritative voice on advertising self-regulation issues in Europe'. EASA's Best Practice Recommendations (BPRs) are valuable guidance on, for example, the distinction between paid and unpaid communications. These documents are placed and linked in relevant channels within the text in each country or can be found via the earlir llnk.
 
1.3 Structure and scope of the ICC Code

 

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

ICC International Code of Direct Selling

 

Key rules are set out in the following content section B and channel section C, as applicable

 

Children

 

  • Article 18 of the General Provisions of the ICC Code (2018) covers children and teens at some length. The new (Sept 2024) code adds a whole new chapter E on Children and Teens as well as articles 20 and 22 under General Provisions and  articles C5 and 17.8 under Chapter C, Data-driven Marketing, Direct Marketing, and Digital Marketing Communications
  • Also worthy of note is the International Consumer Protection Enforcement Network (ICPEN), a network of consumer protection agencies from over 60 countries, who publish Best Practice Principles for Marketing Practices Directed Towards Children Online (June 2020) 
  • On the home page of this website, you'll find a complete children's sector with the rules spelt out country by country 

 

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

 

1.4 Sector and channel rules 

 

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

 

2. THE LAW
European Regulations and Directives

 

 
We draw extensively on European directives and their national implementation in the sector and general rules shown elsewhere on this website. In this international context, we show only the most immediately relevant directives and a brief extract of their rules, together with links to EU Regulations which apply directly in member states. It should not be assumed that directives are always implemented to the letter, but providing them together in one place at least allows a broad understanding of the influences of European legislation. EU Regulations are significant in the food sector of those we cover currently, for example, and it's important at least to be aware of them, albeit rules are reflected in the self-regulatory measures that remain the most important influence in advertising regulation in Europe and elsewhere. A valuable June 2021 piece from Simmons and Simmons/ Lexology Media law and regulation in European Union focuses largely on the AVMS Directive and its amendment by Directive 2018/1808.

 

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

 

Issue or channel Key European legislation and 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)
http://data.europa.eu/eli/dir/2010/13/oj

Directive 2018/1808 extended some rules into especially video-sharing platforms 

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

Data Processing 

Regulation 2016/679/EU on the processing of personal data (GDPR) 

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

 

THE DMA AND DSA IN EUROPE

 

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

 

DATA/ PRIVACY 

 

 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

 

THE OMNIBUS DIRECTIVE

 

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.

 

 

COMPENDIA, FORECASTS, VADE MECUMS 

 

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

 

 

 

...................................................................
Read more

B. Content Rules

Sector

SECTION B CONTENT RULES

 

 

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

 

1. GAMBLING CODE OF CONDUCT

2. GUIDE TO THE CODE OF CONDUCT

3. LEGISLATION IN MARKETING/ ADVERTISING

4. EGBA STANDARDS 

5. EUROPEAN RECOMMENDATION ONLINE GAMBLING

 

6. GENERAL RULES

6.1. General principles on commercial communications

6.2. Code of Conduct on Personal Denigration and Discrimination

6.3. Advertising with celebrities

6.4. ICC Advertising and Marketing Communications Code

6.5. Legislation in advertising

 

 

 

Definitions: For the purposes of this code of conduct:

 

  • Gambling means any game of chance where in the context of a game a fee must be paid to acquire a chance to win and the determination of the winnings is entirely or predominately (sic) a matter of chance
  • Commercial communication is the use of any communication instrument by a business enterprise with the primary objective of promoting the sale of goods or services, excluding editorial content

Preamble

 

The members of the German Advertising Federation (Zentralverband der deutschen Werbewirtschaft/ ZAW), are of the firm opinion that:

 

  • Commercial communication is of fundamental importance to free and fair competition
  • Most gamblers in Germany take part responsibly in gambling
  • Advertising for lawful gambling is indispensable in order to channel participants to a protected and safe market

 

Pathological gambling can have serious consequences for the individuals concerned, their surroundings and society as a whole. Recognising this fact, the gambling enterprises organised in ZAW undertake to shape commercial communication for their products in such a way that it does not promote problematic gambling behaviour. In accepting this obligation, gambling operators wish:

 

  • To prevent representations and claims made in commercial communication for their offerings from being misconstrued as promoting problematic gambling behaviour
  • To prevent commercial communication for their offerings from being addressed at minors
  • To promote compliance and combat noncompliance with these principles. In cooperation with the German Advertising Federation (ZAW), gambling operators have therefore drawn up the following Rules of Conduct on Commercial Communication for Gambling
  • Organisation of the complaints procedure to ensure compliance with this Code and the assessment of complaints are the responsibility of the German Advertising Standards Council

 

1. Responsibility towards consumers

 

Commercial communication for gambling shall not:

 

  • Address consumers in an inappropriate manner. In particular, mental or physical weaknesses, age, lack of business acumen, gullibility or financial or social predicaments shall not be exploited (1.1)
  • Contain untrue or misleading statements, in particular concerning the size and probability of winnings and the terms and conditions of participation (1.2)
  • Suggest that problematic gambling behaviour can be ruled out by reference to specific gambling offerings or especially small stakes (1.3)
  • Encourage consumers to regain losses or reinvest winnings (1.4)
  • Give the impression of financial difficulties being solved by gambling  (1.5)
  • Contain representations and claims that are capable of imparting problematic gambling behaviour and in particular gambling behaviour that is excessive from a financial or social point of view, or that are capable of inciting such behaviour or of making such behaviour appear acceptable (1.6)

 

2. Social conduct

 

Commercial communication for gambling shall not:

 

  • Suggest that gambling can counter disorders and/ or psychosocial conflicts, in particular fear or loneliness (2.1)
  • Present abstinence from gambling in a poor light (2.2)
  • Present participation in gambling as an important part of an individual’s personal lifestyle, as a substitute for social encounters or as a solution to social problems (2.3)
  • Suggest that participation in gambling is conducive to social success and in particular that it contributes towards improving an individual’s reputation or personal attractiveness (2.4)
  • Promote or tacitly tolerate punishable or unlawful conduct (2.5)

 

3. Minors

 

Commercial communication for gambling shall not:

 

  • Incite minors to participate in gambling or show minors in the act of gambling. No use shall be made of representations or claims of special appeal to minors (3.1)
  • Be conveyed by media the majority of whose editorial content addresses minors (3.2)
  • Be shown on sports kits worn by sports teams comprising minors or conveyed in advertising and sponsoring campaigns that are directly related to minors (3.3)
  • Depict individuals other than those who are and give the impression of being at least young adults (3.4)

 

 

2. GUIDE TO THE CODE OF CONDUCT

 

These guidelines are published by the Self-Regulatory Organisation Deutscher Werberat. The links below carry the full guidelines which include visuals that depict fictional scenarios that demonstrate the points made by the authority, so best to check the linked files as well as the text set out below

 

https://www.g-regs.com/downloads/DEGamDWGuideRespEN.pdf

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

 

Advertising for gambling must live up to its social responsibility: the guidelines of the German Advertising Council ensure a responsible approach to consumers and so protect those addicted to gambling and those at risk of addiction. Any word from minors is generally prohibited

 

 

 

 

  • Gambling advertising can refer to viewers’ affinity to personal favourite athletes or a sports team. However, it must not suggest that being close to a team provides an advantage when gambling. Positive crowd reaction at sporting events may be used in advertising
  • Gambling advertising can refer to viewers’ affinity to personal favourite athletes or a sports team. However, it must not suggest that being close to a team provides an advantage when gambling. Positive crowd reaction at sporting events may be used in advertising 
  • (Text in the shot reads ‘Support your team. Just sign up at www. etc. and support your team)

 

 

  • Gambling advertising should not suggest that further gambling could recoup earlier losses
  • (The text in the shot translates as ‘Bad luck if you lose one. Gains can be made. Don't give up. Be a winner)

 

 

  • Advertising for gambling may not include the impression that by participating in games of chance current financial problems could be resolved
  • The text in the lower part of the shot reads Worried? Problems? No money?  That’s over now. Get yourself this year up to I mil Euros. They get rich with etc.)

 

 

Social behaviour 

 

 

 

  • Advertising may not convey the impression that people who don’t gamble are somehow devalued, or present them as social outcasts
  • Text in the shot reads those who do not support their team are not part of the ‘fan club’

 

 

 

 

  • The (successful) participation in a game of chance may not be presented as the reason for social success
  • The (very subtle) text in the shot reads: ‘Bet. Won. Not just in the game”

 

 

3. LEGISLATION IN GAMBLING MARKETING/ ADVERTISING

 

https://www.gluecksspiel-behoerde.de/images/pdf/201029_Gluecksspielstaatsvertrag_2021.pdf

 

Section 5 of the Interstate treaty linked above provides that:

 

  • Advertising must be in line with the objectives set out in Section 1 (protection of minors, avoidance of fraudulent and unregulated gambling, the creation of conditions that fight addiction)
  • Advertising must not be directed at minors or similarly vulnerable groups
  • Misleading advertising, especially that containing inaccurate statements about the odds or type and amount of winnings, is prohibited
  • Television and online advertising is not permitted except for lotteries and sports betting (this includes horse racing)
  • Advertising sports betting on television immediately before or during the live broadcast of sporting events is not permitted

 

 

4. EGBA STANDARDS

 

These rules apply to members of EGBA. We include marketing–related extracts because you or your client may be a member; some major advertisers in Germany are members. The full set of standards is here

 

Principle 1: Promote responsible gaming and betting

 

  • Providing customers with explicit information about the possible risks and harms of online gaming
  • Providing a link to qualified sources of help
  • Allowing customers to request the setting of betting / deposit limits
  • Offering customers the opportunity to self-exclude
  • Not providing credit to customers

 

Principle 2: Know your customer and prevent underage gaming and betting

 

  • Prominently displaying a ‘no under 18’s’ or ‘no under 21’s’ sign on the homepage of the members’ websites, linking to a clear message about underage play
  • Advising parents regarding recognised filtering programmes, including a link to a recognised filtering programme to enable customers / parents to prevent minors from accessing gaming and betting sites
  • Regularly monitoring underage gaming and betting by conducting random checks of customers to ensure compliance with age restrictions

  

Principle 4: Protect customer privacy and safeguard information

 

  • Protecting confidential customer information from unauthorised or unnecessary disclosure
  • Ensuring privacy and confidentiality: customers will be informed on EGBA members’ websites about the exact terms and conditions of the member’s privacy policy

 

Principle 7: Ethical and responsible marketing

 

  • Ensuring that advertisements shall not entice the underage to bet, and shall not be displayed in media that is clearly targeted at the underage
  • Ensuring that advertisements only contain factually correct information and avoid misleading information
  • Ensuring that members do not knowingly engage in the distribution of unsolicited advertisements (i.e. SPAM) either directly or through a third party

 

 

5. EUROPEAN RECOMMENDATION ONLINE GAMBLING

 

From Commission Recommendation (not binding in law but important to be aware of) No. 2014/478/EU of 14 July 2014. Most of the provisions are covered by national regulations, though Section IV, pt. 12 has: “commercial communications should carry a clear ‘no underage gambling’ message indicating the minimum age below which gambling is not permissible.”

 

5.1. Information requirements

 

4. The following information should be displayed prominently on the landing page of the operator's gambling website and be accessible from all pages on the website:

 

(a) The company details, or other means that ensures the operator is identifiable and can be contacted, including: (i) company name; (ii) place of registration; (iii) e-mail address

(b) A ‘no underage gambling’ sign, which shows the minimum age below which gambling is not permissible

(c) A ‘responsible gambling’ message, which no more than one click away provides: (i) information that gambling can be harmful if not controlled; (ii) information about the player support measures on the website; (iii) self-assessment tests for the players to check their gambling behaviour

(d) A link to at least one organisation providing information and assistance in respect of gambling disorders.

 

5. The terms and conditions of the contractual relationship between the operator and the consumer should be provided in a concise and legible manner. They should:

 

(a) Contain information at least about timeframes and limits regarding withdrawals from the player account, any charges concerning the player account transactions and a link to the applicable payout percentages for every game

(b) Be accepted and confirmed by the consumer during the registration process referred to in Section V

(c) Be made available by electronic means in a way that allows the consumer to store and retrieve them, and any changes communicated to the consumer

 

6. Member States should ensure that information is available to the consumer about the rules concerning the games and bets available on the operator's gambling website

7. Member States should ensure that the operator's gambling website displays the details of the gambling regulatory authority to show that the operator is authorised.

 

5.2. Minors

 

8. No minor should be able to play on a gambling website or hold a player account

9. Member States should ensure that the operator has procedures in place designed to prevent minors from gambling, including age verification checks during the registration procedure referred to in Section V

10. To prevent minors from having access to gambling websites, Member States should encourage the display of links to parental control programmes on gambling websites

11. Member States should ensure that commercial communications for online gambling services do not harm minors or induce them to view gambling as a natural element of their leisure time activities

12. Commercial communications should carry a clear ‘no underage gambling’ message indicating the minimum age below which gambling is not permissible

13. Member States should encourage that commercial communications are not broadcast, displayed or facilitated:

 

(a) In media, or around programmes, where minors are expected to be the main audience

(b) On websites with minors as the audience profile

(c) In close proximity of places where minors normally spend time and are expected to be the main audience including at least schools

 

14. Commercial communications should not:

 

(a) Exploit the inexperience or lack of knowledge of minors

(b) Use images of minors or young persons or campaigns that particularly appeal to minors

(c) Appeal to minors, or to young persons by reflecting or associating gambling with youth culture activities

(d) Suggest that to gamble marks the transition from adolescence to adulthood.

 

5.3. Commercial communication

 

39. Member States should ensure that the operator on whose behalf the commercial communication is made is clearly identifiable.

40. Where appropriate, Member States should ensure that commercial communications of online gambling services carry messages including at least the risks for health of problem gambling, in a practical and transparent manner.

41. Commercial communications should not:

 

(a) Make unfounded statements about chances of winning or the return that players can expect from gambling;

(b) Suggest that skill can influence the outcome of a game, when this is not the case

(c) Exert pressure to gamble or disparage abstention through timing, location or nature of the commercial communication

(d) Portray gambling as socially attractive or contain endorsements by well-known personalities or celebrities that suggest gambling contributes to social success

(e) Suggest that gambling can be a resolution to social, professional or personal problems

(f) Suggest that gambling can be an alternative to employment, a solution to financial concerns or a form of financial investment

 

42. Member States should ensure that play-for-fun games used in commercial communications are subject to the same rules and technical conditions as the corresponding play-for-money games

43. Commercial communications should not target vulnerable players in particular by making use of unsolicited commercial communications addressed to players who have self-excluded from gambling or have been excluded from receiving online gambling services on reasons of problem gambling

44. Member States that permit unsolicited commercial communication by electronic mail should ensure:

 

(a) That such commercial communication is identifiable clearly and unambiguously

(b) That the operator respects the opt-out registers in which natural persons not wishing to receive such commercial communications can register

45. Member States should ensure that commercial communications take into account the risk potential of the online gambling service promoted.

 

5.4. Sponsorship

 

46. Member States should ensure that sponsorship by operators is transparent and that the operator is clearly identifiable as the sponsoring party.

47. Sponsorship should not adversely affect or influence minors. Member States are encouraged to ensure that:

 

(a) No sponsorship is allowed of events designated for or mainly aimed at minors

(b) Promotional material of the sponsoring party is not used in merchandising designed for or mainly aimed at minors

 

48. Member States should encourage sponsored parties to verify if the sponsorship is authorised, in accordance with national law, in the Member State where the sponsorship should take effect

 

 

6. GENERAL RULES

 

This section shows some of the key codes and laws that apply to all sectors but may have particular relevance to gambling marcoms, for example the Personal Denigration and Discrimination Code under 4.2.  The full rules from these regulations and others are set out under the General tab below

 

6.1. Deutscher Werberat general principles on commercial communications EN / DE

 

Advertising must uphold generally accepted social values and prevailing notions of decency and morals. At all times, it must be based on the principles of fair competition and responsibility towards society. In particular

 

  • Consumer trust must not be abused and inexperience or lack of knowledge not exploited
  • Children and juveniles must not be subjected to physical or psychological harm
  • Discrimination in whatever form – on grounds of race, ethnic origin, religion, gender, age, disability or sexual preference, or by reducing an individual to a mere sexual object – should be neither fostered nor silently tolerated
  • Violent, aggressive or antisocial behaviour should be neither fostered nor silently tolerated
  • Fear should not be instilled nor unhappiness or suffering instrumentalised
  • Behaviour that threatens consumers’ safety and security should be neither fostered nor silently tolerated

 

6.2. 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.  Key extracts from the code itself follow:

 

In commercial advertising, no expressions or depictions may consequently be used which, in particular:

 

  1. Discriminate against persons, for example, on account of their gender, descent/ origin (ethnic group), race, language, place of origin, religion, political opinions, age, disability, or occupation
  2. Devalue people simply because they do not conform to prevailing expectations in respect of their appearance, behaviour, sexual orientation, personal qualities or lifestyle
  3. Include violence or the trivialisation of violence against people or permit violence or domineering behaviour to appear to be acceptable
  4. Create the impression that people can be bought or treat them as objects
  5. Reduce people to a purely sexual function or suggest their sexual availability
  6. Convey a degraded view of sex with excessive display of nudity; or
  7. Are of a pornographic character

 

6.3. DW’s Advertising with celebrities EN / DE

 

The full rules are set out under the General tab below, or see the linked document

 

6.4. ICC Advertising and Marketing Communications Code

 

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

 

2. Social responsibility

 

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

 

5. Truthfulness

 

  • Marketing communications should be truthful and not misleading
  • Marketing communications should not contain any statement, claim or audio or visual treatment which, directly or by implication, omission, ambiguity or exaggeration, is likely to mislead the consumer, in particular, but not exclusively, with regard to: 

 

  • Characteristics of the product which are material, i.e. likely to influence the consumer’s choice, such as: nature, composition, method and date of manufacture, range of use, efficiency and performance, quantity, commercial or geographical origin or environmental impact
  • The value of the product and the total price to be paid by the consumer
  • Terms for delivery, exchange, return, repair and maintenance
  • Terms of guarantee
  • Copyright and industrial property rights such as patents, trade marks, designs and models and trade names
  • Compliance with standards
  • Official recognition or approval, awards such as medals, prizes and diplomas
  • The extent of benefits for charitable causes.

 

Other significant elements of the ICC Code are in detailed chapters, accessible from the linked document above and covering:

 

Chapter A: Sales Promotion

Chapter B: Sponsorship

Chapter C: Direct Marketing and Digital Marketing Communications

Chapter D:  Environmental Claims in Marketing Communications

 

6.5. Legislation in advertising

 

The Law Against Unfair Competition

UWG DE / EN (full law, updated translation) / EN key provisions

Applicable to all media

  • The Unfair Commercial Practices Directive 2005/29/EC, from which the UWG is derived is, in this marketing/ advertising context the principle consumer protection legislation in Europe. The Self-Regulatory Organisation WBZ applies the act, especially when assessing competitive claims and describes it as the ‘the most important in advertising regulation.’

 

The State Media Treaty MStV (DE / EN) and The Interstate Treaty on the Protection of Minors  JMStV (DE)

 

  • These acts, transposing the AVMS Directive 2010/13/EU as amended by Directive 2018/1808, include content rules and incorporate online/ telemedia as well as broadcasting services; the latter obviously addresses children/ young people in particular; article 6 of JMStV (EN) covers the protection of minors in commercial communications
  • Changes to the content rules brought about by the Directive’s amends are not significant; the new article 9 (of the AVMS Directive) and some other amends are here
  • Also relevant is article 4 (EN) of the Youth Protection Guidelines JuSchRiL which substantiate/ extend the legal requirements of JMStV

 

 

The full rules that apply to all sectors, gambling included, are set out under the General tab below

 

 

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

General

SECTION B CONTENT RULES

 

 

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

 

  1. SELF-REGULATION 

1.1.  DW Code of Conduct; basic principles

1.2.  Personal denigration and discrimination

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

1.4.  ICC Advertising and Marketing Communications Code  

  1.  LEGISLATION

2.1. Law against unfair competition 

2.2. Broadcast/ AV rules

  1. ENVIRONMENTAL CLAIMS

3.1. The ICC Framework for responsible environmental marketing communications

3.2. UCPD and UWG application to environmental claims

  1. PRICING IN ADVERTISING

- Legislation (UWG, PangV)

- Cae law and guidance 

  1. ‘SHOCK’ ADVERTISING

- Benetton Case

 

1. SELF-REGULATION

 

1.1 Deutscher Werberat general principles on commercial communications EN / DE

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

 

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

 

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

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

1.3 DW’s Advertising with celebrities EN / DE

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

Legislation on advertising with politicians and celebrities

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

 

Human dignity

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

The right to one’s own name

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

1.4 ICC Advertising and Marketing Communications Code 

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

Article 2. Social responsibility

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

Article 5. Truthfulness

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

Chapter A: Sales Promotion

Chapter B: Sponsorship

Chapter C: Direct Marketing and Digital Marketing Communications

Chapter D:  Environmental Claims in Marketing Communications

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

 

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

 

Section 5 Misleading Commercial Practices (B2C and B2B)

 

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

 

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

 

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

 

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

 

  1. Information within the meaning of subsection (1), second sentence, shall also be deemed to include information forming part of comparative advertising as well as pictorial illustrations and other events that are targeted/ aimed at and are suitable for, taking the place of (replacing) such information
  2. It shall be presumed to be misleading to advertise with a price reduction in a case where the price concerned has been demanded for only an unreasonably short period of time. In the event of dispute as to whether, and for what period of time, the price was demanded, the burden of proof shall fall upon the person who advertised the price reduction. (Note: i.e. misleading to base sales promotions on price cuts if the original (higher) price has only been demanded for an unreasonably short period of time (‘moon price advertising’ - Mondpreiswerbung)

 

Section 5a Misleading by omission

 

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

 

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

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

 

(2) Withholding is also considered to be:

1. The hiding of material information,

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

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

 

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

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

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

 

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

 

Invitation to Purchase

 

5b. Material information

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

 

 

Section 6. Comparative advertising

 

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

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

 

 

The Blacklist

 

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

5. Making an invitation to purchase goods or services within the meaning of Section 5a subsection (3) at a specified price when the entrepreneur does not disclose that he has reasonable grounds for believing that he will not be able to supply these, or equivalent, goods or services, or procure such supply, at such specified price for a period that is, and in quantities that are, reasonable (bait advertising). Where stocks are available for less than two days, it shall be incumbent on the entrepreneur to furnish proof of reasonableness;

6. Making an invitation to purchase goods or services within the meaning of Section 5a subsection (3) at a specified price in a situation where the entrepreneur, with the intention of promoting different goods or services instead, then demonstrates a defective example of the goods or services, or refuses to show the consumer the goods or services advertised, or refuses to take orders for the goods or services or to perform the advertised service within a reasonable time

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

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

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

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

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

 

 

2.2. Broadcast/ AV rules

 

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

 

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

 

1. Prejudice respect for human dignity

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

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

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

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

 

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

 

3. ENVIRONMENTAL CLAIMS

 

3.1. Self-regulation

 

  • The ICC Advertising and Marketing Communications Code (EN 2024) applies, in particular Environmental Claims in Marketing Communications Chapter D, in as much as In making rulings, DW include the code in its set of considerations, the others being applicable law and their own codes of practice
  • ICC Framework for Responsible Environmental Marketing Communications (EN November 2021) which provides additional examples, definitions of common terms, and includes a summary of the General Provisions of the ICC Code and those in Chapter D, supplemented by other considerations in applying the principles to environmental advertising. Appendix I carries an Environmental Claims Checklist

 

3.2. 'Horizontal' legislation

 

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

 

European Commission guidance

 

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

 

4. PRICING IN ADVERTISING

 

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

Relevant clauses extracted; structure simplified

 

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

 

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

 

2.  The reason for purchase such as the existence of a specific price advantage, the price or the manner in which the price is calculated, (italics ours) or the conditions on which the goods are supplied or the services provided

 

Section 5a No. 3 UWG: misleading omissions  

 

  • The following information shall be regarded as material within the meaning of subsection (2) if not already apparent from the context:

3.  The total price, or in cases where the nature of the goods or services means that such price cannot be calculated in advance, the manner in which the price is calculated as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot be calculated in advance, the fact that such additional charges may be payable;

 

Section 5 (4) UWG misleading action

 

 (4) It shall be presumed to be misleading to advertise with a price reduction in a case where the price concerned has been demanded for only an unreasonably short period of time

 

Point 21 Annex

 

  • 21.  Offering goods or services as being “gratis”, “free”, “without charge”, or using a similar expression, although costs are to be paid therefor (sic); this shall not apply to the unavoidable cost of responding to the offer of goods or services or of collecting or paying for delivery of the goods or of using the services

 

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

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

 

Guidance and case law

 

Legislation (2)

 Price Indication Ordinance PAngV DE

See reference to amends in the final para of this section

 

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

 

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

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

 

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

 

5. ‘SHOCK’ ADVERTISING

 

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

 

From legislation: 

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

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

 

Case law

Federal Constitutional Court cases:

 

 

 
 
Key points

 

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

 

 

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

International

SECTION B CONTENT RULES

 

 

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

 

 

  1. SELF-REGULATION; the 2024 ICC Code

1.1. General provisions

 
  1. THE LAW 

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

2.3. The AVMS Directive 

2.4. The Empco Directive 

2.5. The Green Claims Directive 


 

1. SELF-REGULATION; THE ICC CODE
The 11th edition of the ICC Code was published September 2024.
We show additions/amends in italics together with the previous versions, so you can see developments
We have not included e.g.scope, definitions, for reasons of space; these are often important and should be checked 

 

1.1 General provisions 

 

Basic principles (Art. 1)

 

  • All marketing communications should be legal, decent, honest and truthful;
  • All marketing communications should be prepared with a due sense of social, environmental and professional responsibility and should conform to the principles of fair competition, as generally accepted in business;
  • No communication should be such as to impair public confidence in marketing.
  • No communication should in the content and manner made undermine the public’s trust and confidence in marketing communications.

 

Social responsibility (Art. 2)

 
  • Marketing communications should respect human dignity and should not incite or condone any form of discrimination, including that based upon ethnic or national origin, religion, gender, age, disability or sexual orientation;
  • Marketing communications should respect human dignity and should not incite or condone any form of discrimination, including that based upon ethnic or national origin, religion, gender, age, physical attributes, mental health, disability, or sexual orientation. Marketers are encouraged to be mindful of diversity and inclusion (see ICC guidance on diversity and inclusion in advertising, 2023) and seek to avoid stereotypes and objectification. Explanation Stereotyping is the practice of referring to or playing on an oversimplified and untrue notion of a particular group, sometimes employing archetypal traits. Objectification means representing people not as persons or individuals but as objects of sexual or other templating character.
  • No marketing communication should be associated with corrupt practices (See ICC Rules on Combatting Corruption which defines in Part 1 “Corruption” or “Corrupt Practice(s)” as used in these rules shall include bribery, extortion or solicitation, trading in influence and laundering the proceeds of these practices) of any kind.
     Marketers should take due account of the ICC Rules on Combating Corruption and other ICC anti-corruption tools 

Marketing communications should not:

 

  • without justifiable reason play on fear or exploit misfortune or suffering;
  • appear to condone or incite violent, unlawful anti-social behavior or animal abuse;
  • appear to encourage or condone irresponsible use or harmful behaviour;
  • play on superstition;
  • marketing communications should not appear to condone or encourage actions which contravene the law, self-regulatory codes or generally accepted standards concerning climate change, sustainable and environmentally responsible behaviour;
  • they should respect the principles set out in Chapter D on environmental claims in marketing communications and be mindful of the ICC Framework for Responsible Environmental Marketing Communications
 

Decency​ (Art. 3)

 
  • Marketing communications should not contain statements or audio or visual treatments which offend standards of decency currently prevailing in the country and culture concerned.
  • Marketing communications should not contain anything which offends standards of decency currently prevailing in the country and culture concerned and strive to respect social norms and tradition;
  • Marketing communications should not incite or condone hate speech by using elements associated to it, such as false testimonials or endorsements, conspiracy theories, or other means to circulate harmful content
 

Honesty (Art. 4)

 
  • Marketing communications should be so framed as not to abuse the trust of consumers or exploit their lack of experience or knowledge;
  • Relevant factors likely to affect consumers’ decisions should be communicated in such a way and at such a time that consumers can take them into account.
  • Marketing communications should be structured in a way that does not take advantage of consumer trust or exploit their inexperience or limited understanding;
  • Relevant factors that can affect consumers’ decisions should be communicated in a manner and at a time that allows them to consider them effectively;
  • High-pressure marketing tactics which might be construed as harassment or hamper consumer choice, should not be used;
  • Marketing communications should not abuse the trust of consumers by using deceptive practices or spreading disinformation using elements such as false testimonials or endorsements, conspiracy theories, such as bait and switch or clickbait. Nor should they knowingly support, engage in, facilitate or fund illegal activities. See ICC Statement on Misplaced Digital Ads.
 

Truthfulness (Art. 5)

 

  • Marketing communications should be truthful and not misleading;
  • Marketing communications should not contain any statement, claim or audio or visual treatment which, directly or by implication, omission, ambiguity or exaggeration, is likely to mislead the consumer, in particular, but not exclusively, with regard to:
  • Marketing communications should not contain any claim likely to mislead the consumer, regardless of how it is conveyed – by text, sound, visual elements or any combinations thereof – and regardless of how the misleading effect occurs – directly or by implication, omission, ambiguity or exaggeration. The combination of elements used in a marketing communication provides the net impression of a claim and control how it is interpreted. This applies especially, but is not limited to:
     
    • characteristics of the product which are material, i.e. likely to influence the consumer’s choice, such as the nature, composition, method and date of manufacture, range of use, efficiency and performance, benefits, quantity, commercial or geographical origin or environmental, social or economic impact;
    • the value of the product, and the total price and taxes to be paid by the consumer;
    • terms for the delivery, provision, exchange, return, repair and maintenance;
    • terms of guarantee;
    • copyright and industrial property rights such as patents, trade marks, designs and models and trade names;
    • the full provision, activation or automatic renewal of a subscription or service, copyright and industrial property rights such as patents, trademarks, designs, models, trade names and other distinguishable marks;
    • compliance with standards; compliance with certification and standards or any other use of quality marks, logos (e.g. environmental, sustainable) or recognition symbols;
    • official recognition or approval, awards such as medals, prizes and diplomas;
    • sponsorship, agreement or cooperation with a particular company or brand;
    • the extent of benefits for charitable causes;
    • respect of human rights or sustainable behaviour.

  • Audiovisual materials such as photos, video, sounds or other illustrations that are likely to mislead the consumer with regard to either a product’s characteristics, performance, benefits, quality and effects to be expected, or the association of a person or organisation with the product, should not be used, including where these are misleading because they have been altered or enhanced (e.g. AI generated or by so-called photo and video editing);
  • Communications that reflect specific commitments or goals that are aspirational in nature and not likely to be met until many years in the future (e.g. carbon negative, climate positive, diversity, equality, well-being etc.) require that the company is able to demonstrate, in concrete terms, that it has a reasonable capacity and methodological approach to meet such a commitment. Qualifiers should be included if elements or impacts will occur in the future.

 

Substantiation (Art. 6)

 

  • Descriptions, claims or illustrations relating to verifiable facts in marketing communications should be capable of substantiation. Claims that state or imply that a particular level or type of substantiation exists must have at least the level of substantiation advertised. Substantiation should be available so that evidence can be produced without delay and upon request to the self-regulatory organisations responsible for the implementation of the Code.
  • Marketers should have a reasonable basis for making claims relating to verifiable facts at the time the claim is made. Claims that state or imply that a particular level or type of substantiation exists should have at least the level of substantiation advertised. Supporting documentation should be provided promptly upon request to the self-regulatory organisations responsible for the application and enforcement of the Code. The standard of proof required generally depends on factors such as the type of claim, the product, the consequences of a false claim and the benefits of a truthful claim;
  • Substantiation should be based on documentation, tests or other factual evidence that is valid, reliable and sufficiently precise to support the claim made. In the absence of required substantiation, the claim would be regarded as misleading. 
  • Regarding substantiation of environmental claims, see Article D1.

 

 

Identification clauses

 

identification and transparency (Art. 7)

 

  • Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews.
  • Marketing communications, regardless of format or medium, should be easily identifiable, allowing consumers to clearly distinguish between commercial and non-commercial content;
  • Identification disclosures should be prominent, clear, easily legible and appear in close proximity to the commercial message where they are unlikely to be overlooked by consumers;
  • Marketing communications should be transparent about their true commercial purpose, and not misrepresent it. Hence, a communication promoting the sale of goods, or the contracting of a service should not be disguised, for example as news, editorial matter, market research, consumer surveys, consumer reviews, user-generated content, private blogs, private postings on social media or independent reviews etc.;
  • In the case of mixed content, such as with news or editorial matter or social media, the marketing communication element should be made clearly distinguishable as such, and its commercial nature should be transparent. It should be so presented that it is readily and immediately recognisable as a marketing communication and where appropriate, labelled as such.

 

identity of the marketer (Art. 8)

 

  • The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called “teaser advertisements”).
 
Use of technical/ scientific data and terminology (Art. 9)

 

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

 

 

Promotional terms/ dark patterns 

 

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

 

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

 

NEW ARTICLE

Presentation of the offer (Art. 11)

 

  • The terms and conditions of any offer including the identity of the marketer, full name and address along with information on how to ask questions or lodge complaints should be transparent to consumers. There should be a clear process which leads to the necessary steps to place an order, purchase, conclude a contract or any other commitment. Wherever appropriate, the essential points of the offer should be simply and clearly summarised together in one place. Essential points of the offer may be clearly repeated but should not be scattered throughout an extensive presentation;
  • Offers should not be presented in a manner that conceals or obfuscates material factors, e.g. price, additional costs, availability or other essential sales conditions, likely to influence consumers’ decisions;
  • Any image, sound or text which, by its size, volume or any other visual characteristic, is likely to materially reduce or obscure the legibility and clarity of the offer should be avoided. When an offer involves different choices those should be clear and unambiguous, and their consequences easy to understand for consumers;
  • When the presentation of an offer also features products not included in the offer, or where additional products need to be purchased to enable the consumer to use the product on offer, this should be made clear in the original offer. For offers involving promotional items, see Chapter A: Sales Promotion;
  • Before making any commitment, consumers should be able to easily access the information needed to understand the exact nature of the product and all conditions of the offer, as well as their rights and how to exert them. Marketing communications inviting consumers to contact the marketer for further information of an offer should be transparent on the cost of communications therefore (see also Article C4);
  • Where appropriate, the marketer should respond by accepting or rejecting the consumer’s order. The fulfilment of any obligation arising from the offer should be prompt and efficient.

 

NEW ARTICLE
 Automatic renewals (Art.12)

 

  • Advertising and marketing materials should clearly indicate when products are available as an automatic renewal rather than a one-time purchase. (See ICC Principles on Automatic Subscription Renewals. Essentially, marketers should obtain consumers’ consent to the material terms of an automatic renewal at the start of the contract);
  • The communication should not be misleading as to how the mechanism works or its consequences. The terms of renewal should be easily accessible for consumers before making any purchase. Where an automatic renewal begins with a free trial or other introductory offer Article 10 applies.

 

NEW ARTICLE
Use of “guarantee” (Art. 13)

 

  • Marketing communications should not state or imply that a “guarantee”, “warranty” or similar terms, provide extra consumer rights additional to those provided by law unless they genuinely do. The terms of any guarantee or warranty, including the guarantor’s name and address, should be easily available to consumers and limitations on consumer rights or remedies, where permitted by law, should be transparent and prominently visible.

 

Comparative and competitive 

 

Comparisons (Art. 14)​

 

  • Marketing communications containing comparisons should be so designed that the comparison is not likely to mislead, and should comply with the principles of fair competition. Points of comparison should be based on facts which can be substantiated and should not be unfairly selected.
  • Marketing communications containing comparisons should be carefully designed so as not to mislead and should comply with the principles of fair competition. Points of comparison should be based on verifiable facts. Product or price advantages that are demonstrable per se should not be exaggerated or overdramatised. Comparisons should be clear whether they are to a competitor’s product or to another version of the same product.

 

Exploitation of goodwill (Art. 15)

 

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

 

Imitation (Art. 16)

 

  • Marketing communications should not imitate those of another marketer in any way likely to mislead or confuse the consumer, for example through the general layout, text, slogan, visual treatment, music or sound effects;
  • Where a marketer has established a distinctive marketing communications campaign in one or more countries, other marketers should not imitate that campaign in other countries where the marketer who originated the campaign may operate, thereby preventing the extension of the campaign to those countries within a reasonable period of time
  • Marketing communications should not imitate another marketer’s work in a manner that is likely to mislead or confuse the consumer. This includes similarities in general layout, text, slogan, visual treatment, music or sound effects;
  • Where a marketer has established a distinctive marketing communications campaign in one or more markets, other marketers should not imitate that campaign in other markets where the original marketer might operate. This will consequently prevent blocking the expansion of the campaign to those markets within a reasonable period of time.

 

 

Denigration (Art. 17)

 

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

 

Testimonials/ Influencers 

 

Testimonials (Art. 13)

 

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

 

Testimonials and endorsements; influencer marketing communications (Art. 18)

 

  • 18.1 General principles. Marketing communications should not contain or refer to any testimonial, endorsement or supportive documentation unless it is genuine, verifiable and relevant. Testimonials or endorsements, including influencer marketing communications, which have become obsolete or misleading through passage of time should not be used. The sponsored nature of a testimonial or endorsement should be made clear through an appropriate disclosure if the form and format of the communication would not otherwise be understood to constitute a sponsored message;
  • 18.2 Influencer marketing communications. All influencer marketing communications (including promotions of an influencer’s own products) should be designed and presented in such a way that it is immediately identifiable as such. Identification should be appropriate to the medium and message, particularly in the context of social media. Marketers and their influencers, as well as creators, should ensure the content is properly presented as marketing communications in accordance with the principles of identification and transparency (see Article 7). Content uploaded concerning third parties constitutes a marketing communication only if the influencer has received some form of compensation from the brand, whether financial or through other arrangements and this should be immediately clear from the context or the content. Each time the communication is shared, the connection between the marketer and the influencer should be transparent. Affiliate links to products on external third-party websites should be disclosed as such and their commercial nature transparent. In addition to the provisions in Article 7, identification disclosures should not be obscured by or hidden among other content. General disclosures on websites, in the terms and conditions at the end of a piece of content, buried in a string of hashtags, or in the ‘see more’ section are not sufficient. Marketers should make sure that influencer marketing communications posted on their behalf include relevant qualifiers or statements to avoid misleading consumers about the standards, qualities, attributes, costs or other features of the product involved. Influencers should not create social media posts or other messages alleging the content is sponsored by a business when they have no agreement with the brand. Such false statements should be regarded as marketing communications promoting the influencer’s own activity or brand, and hence as misleading (see Article 5);
  • 18.3 Use of minors When the influencer is a minor (The term “minors” here refers to persons of such age that they, under the applicable law, lack legal capacity to enter into a binding agreement, e.g. an influencer contract with a marketer), marketing communications should be based on a contract providing for explicit parental or guardian consent and protecting the minor against any undue exploitation;
  • Marketers should respect the requirements set out in Chapter E concerning the privacy of children, teens and minors;
  • Marketing communications should clearly disclose the connection to the marketer, including if relevant, that the minor is receiving economic or other compensation. All content featuring minors should be age-appropriate and free from inappropriate products, language, themes, or behaviour; further on the special responsibility for children and teens, see Chapter E.

 

 

Portrayal or imitation of persons and references to personal property (Art. 19)

 

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

 

Children/ teens 

 

NEW ARTICLE

Children and teens (Art. 20)

 

  • Special care should be taken in marketing communications directed to or featuring children or teens. Marketing communications should not exploit the natural credulity of children or the lack of experience of teens and should not strain their sense of loyalty. In directing marketing communications to children and/or teens, the principles of this Code should be applied with due regard to the age and other characteristics of the actual target group, their differing cognitive abilities, and developing personal privacy rights independent of parents or guardians.;
  • Marketers should respect standards and laws prohibiting the marketing of products that are subject to age restrictions such as alcoholic beverages, gambling and tobacco to minors (The term minor here refers to those below the legal purchase age, i.e. the age at which national legislation permits the purchase or consumption of such restricted products. In countries where purchase age and consumption age are not the same, the higher age applies in relevant markets). 

 

For further specific rules, see Chapter E – Children and teens.

 

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

 

Safety and health (Art. 21)

 

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

 

NEW ARTICLE

 Data protection and privacy (Art. 22)
We haven't set out this article as it's a channel rule and well covered elsewhere, largely by the law 

 

NEW ARTICLE
Unsolicited products and undisclosed costs (Art. 23) 
 
  • Marketing communications associated with the practice of sending unsolicited products to consumers who are then asked for payment (inertia selling), including statements or suggestions that recipients are required to accept and pay for such products, should not be used;
  • Marketing communications which solicit a response constituting an order for which payment will be required (e.g. an entry in a publication) should make this unambiguously clear;
  • Marketing communications soliciting orders should not be presented in a form which might be mistaken for an invoice, or otherwise falsely suggest that payment is due;
  • For specific rules on respecting consumers’ wishes, see Chapter C, Article C6.
 
Articles 24-26, which complete the General Provisions section, are not included here as they are largely procedural
 

 

 

  • An 'environmental' claim is defined in the ICC Code as any claim in which explicit or implicit reference is made to the environmental or ecological aspects relating to the production, packaging, distribution, use/consumption or disposal of products. Environmental claims can be made in any medium, including labelling, package inserts, promotional and point-of-sales materials, product literature, as well as digital interactive media means any statement, symbol, sound, or graphic that indicates or implies an environmental aspect of a product, a component or ingredient of it, packaging or constituent of it, or an activity, facility or operation. The full scope and application of Chapter D has been extracted here 

 

Article D1. Substantiation 
 
  • All express or implied environmental claims should be substantiated by reliable scientific evidence11.(TT Reliable scientific evidence is the type of evidence likely to be recognised by experts in the field. Such evidence may, depending on the claim, consist of tests, analyses, calculations, studies, reports, surveys or other information) Care should be taken to assure that the substantiating data relied upon reflects the relevant product or activity and the claimed environmental aspects, attributes or performance featured in the marketing communication;
  • To substantiate aspirational claims or claims expressing goals or commitments related to achieving certain environmental metrics in the future, a marketer should be able to demonstrate that it has reasonable plans in place to work in good faith towards achieving the stated aspiration, goal or commitment in the timeframe specified;
  • As described in Article 6 of the Code, marketers need to monitor and review environmental claims regularly to ensure ongoing compliance, accuracy, and relevance. Typically, reliable scientific evidence, such as test data, analyses, studies and other documentation, are required to meet this standard;
  • See the Framework for further details on substantiation.

 

D2. Honest and truthful presentation

 

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;

  • D2.1 Marketing communications should not contain any statement or visual treatment environmental claims which are likely to mislead consumers in any way about the environmental aspects or advantages of products what's being communicated or about actions being taken by the marketer in favour of the environment.
  • Overstatement of Marketing communications should not overstate environmental attributes, such as highlighting a marginal improvement as a major gain, or using statistics in a misleading manner, e.g. “we have doubled the recycled content of our product” when there was only a small percentage of recycled content used to begin with) are examples. Marketing communications that refer to specific products or activities should not imply, without appropriate substantiation, that they extend to the whole performance of a company, group or industry;
  • An environmental claim should be relevant to the particular product being promoted specific focus of the marketing communication e.g. the products or activities in question. This should relate only to aspects or attributes that already exist or are likely to be realised during a product’s life, including customary and usual disposal or reasonably foreseeable improper disposal. It should be clear to what the claim relates, e.g. the product, a specific ingredient or aspect of the product, or its packaging or a specific ingredient constituent of the packaging or the marketer’s facilities or operations. A pre-existing but previously undisclosed aspect should not be presented as new. Environmental claims should be up to date and should, where appropriate, be reassessed with regard to relevant developments; Aspirational claims should have reasonable plans in place to work in good faith towards achieving the stated aspiration, goal or commitment in the timeframe specified;
  • Improvements related to a product and its packaging should normally be presented separately, and not be combined in keeping with the principle that claims should be specific and clearly relate to the product, an ingredient or element of the product, or the packaging or constituent of the packaging;
  • A claim concerning a combination of elements such as packaging and product combination can only be made if it really concerns both. This would not be the case, for example, if the claim only concerns the product packaging and the significant impacts of the packaging and product combination are different from the significant impacts of the packaging alone. Claims concerning a combination of elements, for example, inclusion of recycled content in a product or product packaged in compostable packaging, should both be supported by appropriate scientific evidence and qualified as needed to properly convey relevant limitations (e.g. our products include 20% recycled content and our packaging is compostable in industrial facilities, which are limited and may not be available near you);
  • Marketing communications that refer to specific environmental claims should not imply, without appropriate substantiation, that they extend to the whole performance of a product, company, group, sector, or industry. Such specific claims should be qualified as needed to avoid a misleading impression, i.e. if the limited nature of the claim is not otherwise clear from the claim itself or the context in which the claim is presented, then the claim should be appropriately qualified;
  • A pre-existing but previously undisclosed aspect should not be presented as “new”;
  • Environmental claims should not state or imply that reductions or benefits required by law or mandatory standards are voluntary.

 

D 2.2 Vague or general, non-specific claims 

  • Vague or general non-specific claims of environmental benefit, which may convey a range of meanings to consumers. Such claims should be made only if they are valid, without qualification, in all reasonably foreseeable circumstances. If this is not the case, general environmental claims should either be qualified or avoided. In particular Claims such as “environmentally friendly,” “ecologically safe,” “green,” “sustainable,” “carbon friendly” or any other claim implying that a product or an activity has no impact — or only a positive impact — on the environment, should not be used without qualification unless a very high standard of proof is available. As long as there are no definitive, generally accepted methods for measuring sustainability or confirming its accomplishment, no claim to have achieved it should be made; 
  • Special care should be taken before claiming sustainability achievements. Marketers should be cognisant of ongoing work to establish relevant methods to measure and validate sustainability. Relevant limitations should be made clear. An unqualified “sustainability” claim may be understood to involve company actions beyond efforts to reduce environmental impacts, depending on the context. Claims may be perceived as stating or implying that they involve social and economic impacts, such as support for fair working conditions, diversity and inclusion, communities, or charities, or the like, as well. Hence, marketers making sustainability claims should be mindful that consumers may take away a broader corporate social responsibility message. Marketers should evaluate relevant substantiation for such messages and consider whether claims should be qualified accordingly;
  • A specific claim about individual environmental attributes supported by reliable scientific evidence could be linked to a claim of “sustainability” (for example, “this part of our product is sustainable because it’s made of 100% post-consumer recycled content and is recyclable”); however, marketers should not state or imply that an entire product, facility or operation is “sustainable” without qualification simply because it has some positive environmental benefits.

 

D 2.2 Qualifications

 

  • Qualifications should be clear, prominent and readily understandable; the qualification should appear in close proximity to the claim being qualified, to ensure that they are read understood together;
  • There may be circumstances where it is appropriate to use a qualifier that refers a consumer to a refer a consumer to a QR code or a website where accurate additional information may be obtained. This technique is particularly suitable for communicating about after-use disposal. For example, it is not possible to provide a complete list of areas where a product may be accepted for recycling on a product package. A claim such as “Recyclable in many only in some communities, visit [URL] to check on if there are facilities near you,” provides both the relevant qualifier (that available recycling facilities are limited) plus a means of advising consumers where to locate information on communities where a particular material or product is accepted for recycling.

 

D3. Scientific research

 

  • Marketing communications should use technical demonstrations or scientific findings about the environmental impact of what's advertised only when they are backed by reliable scientific evidence;
  • In line with article 9, environmental jargon or scientific jargon or terminology is acceptable provided it is relevant to the claimed environmental performance and used in a way that can be readily understood by those to whom the message is directed;
  • An environmental claim relating to health, safety or any other benefit should be made only where it is supported by reliable scientific evidence. Also, such claim may require different reliable scientific evidence as they relate to aspects other than the environment, see Article D6.

 

D4. Comparisons

 

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

 

 

D5. Product life-cycle

 

  • Environmental claims should not be presented in such a way as to imply that they relate to more stages of a product’s life-cycle, or to more of its properties, than is justified by the evidence; it should always be clear to which stage or which property a claim refers. A life-cycle benefits claim should be substantiated by a full life cycle analysis (cradle to grave). If an alternative lifecycle analysis is used (e.g. cradle to gate), the more limited scope of that lifecycle analysis should be disclosed;

Article D6 – Claims regarding components and elements

  • When a claim refers to the reduction of components or elements having an environmental impact, it should be clear what has been reduced. Such claims are justified only if they relate to alternative processes, components or elements which result in a significant meaningful environmental improvement;
  • Environmental claims should not be based on the absence of a component, ingredient, feature or impact that has never been associated with the product category concerned unless qualified to indicate that the product or category has never been associated with the particular component, ingredient, feature or impact. Such claims could be justified if they respond to potential misperceptions about the use of the identified component, ingredient, feature, or impact. If so, qualifiers may be needed to avoid consumers being misled about the nature of the product, process, activity etc.Conversely, generic features or ingredients, which are common to all or most products in the category concerned, or required by law, standards or otherwise, should not be presented as if they were a unique or remarkable characteristic of the product being promoted;
  • Claims that a product does not contain a particular ingredient or component, e.g. that the product is “X-free”, should be used only when the level of the specified substance does not exceed that of an acknowledged trace contaminant or background level Note: “Trace contaminant” and “background level” are not precise terms. “Trace contaminant” implies primarily manufacturing impurity, whereas “background level” is typically used in the context of naturally occurring substances. Claims often need to be based on specific substance-by-substance assessment to demonstrate that the level is below that causing harm. Also, the exact definition of trace contaminants may depend on the product area concerned. If the substance is not added intentionally during processing, and manufacturing operations limit the potential for cross-contamination, a claim such as “no intentionally added xx” may be appropriate. However, if achieving the claimed reduction results in an increase in other harmful materials, the claim may be misleading. Claims that a product, package or component is “free” of a chemical or substance often are intended as an express or implied health claim in addition to an environmental claim. The substantiation necessary to support an express or implied health or safety claim may be different from the substantiation required to support the environmental benefit claim. The advertiser must be sure to have reliable scientific evidence to support an express or implied health and safety claim in accordance with other relevant provisions of the Code;
  • When the absence of a certain component or ingredient is claimed, directly or implicitly, to offer an environmental benefit versus another product, the general rules on comparisons apply, see Article D4 and General Provisions Article 14.

 

D7. Certifications, signs and symbols 

 

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

 

D6. Waste handling

 

  • Environmental claims referring to waste handling are acceptable provided that the recommended method of separation, collection, processing or disposal is generally accepted or conveniently available to a reasonable proportion of consumers in the area concerned. If not, the extent of availability should be accurately described.
 
D8. Environmental attribute claims
 
  • Environmental claims referring to a product’s makeup or constituents (for example, made with recycled or renewable content) or waste handling (for example, recyclable or compostable), should truthfully represent the attributes of the advertised product based on reliable scientific evidence as set out in Article D1. A product claimed to involve recycled or renewable content that is made from less than substantially all recycled or renewable content should avoid any risk of misleading consumers, e.g. by disclosing the percentage. A product claimed to be recyclable or compostable should disclose the extent of availability of these disposal methods if availability is limited;
  • Marketing communications that include compostability claims should disclose if a product is compostable only in industrial settings, and if so, whether facilities are limited, or if the resulting compost is subject to any use limits. A claim that a product’s packaging is refillable, or reusable should provide handling instructions to maintain safety.

 

D9. Responsibility

 

  • For this chapter, the rules on responsibility laid down in the general provisions apply (see article 24).

 

 

Additional guidance

 

 

 

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 

 

  • Article 20 from the General Provisions of the iCC Code above and Chapter E; see above or here 
  • ICC Statement on code interpretation and ICC reference guide on advertising to children here
  • ICC toolkit: Marketing and Advertising to Children (2017) here
  • Framework for Responsible Food and Beverage Marketing Communications here
  • WFA: The Responsible Advertising and Children Programme (RAC); Marketing to children 

 

 

 

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

 

Applicable self-regulation and legislation 

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

 

 

 

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

 

Applicable self-regulation and legislation 

 

 

Legislation 

 

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

 

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

 

 

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

 

 

ANNEX I

 

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.

 

Aggressive commercial practices

 

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

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

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

 

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

 

 

 

2.2.1. Directive 98/6/EC on consumer protection in the indication of the prices of products offered to consumers

 

Article 2

 

For the purposes of this Directive:

 

(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;

(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products;

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

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

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

 

Article 3

 

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

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

 

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

 

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

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

 

Article 4

 

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

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

 

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

 

Article 5

 

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

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

 

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.

 

 

2.2.2. Extracts from UCPD re pricing

 

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').

 

 

 

2.3.The AVMS Directive and amend 

 

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

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

 

Article 9

 

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

 

  1. audiovisual commercial communications shall be readily recognisable as such; surreptitious audiovisual commercial communication shall be prohibited;
  2. audiovisual commercial communications shall not use subliminal techniques;
  3. audiovisual commercial communications shall not;

 

  1. prejudice respect for human dignity;
  2. include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation;
  3. encourage behaviour prejudicial to health or safety;
  4. encourage behaviour grossly prejudicial to the protection of the environment.

 

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

 

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

 

 

2.4. The Empco Directive 
https://eur-lex.europa.eu/eli/dir/2024/825/oj
In force from March 2024, meaning that member states have until September 2026 to implement

 

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:

 

  • ‘(o) “environmental claim” means any message or representation which is not mandatory under Union or national law, in any form, including text, pictorial, graphic or symbolic representation, such as labels, brand names, company names or product names, in the context of a commercial communication, and which states or implies that a product, product category, brand or trader has a positive or zero impact on the environment or is less damaging to the environment than other products, product categories, brands or traders, or has improved its impact over time;
  • (p) “generic environmental claim” means any environmental claim made in written or oral form, including through audiovisual media, that is not included on a sustainability label and where the specification of the claim is not provided in clear and prominent terms on the same medium;
  • (q) “sustainability label” means any voluntary trust mark, quality mark or equivalent, either public or private, that aims to set apart and promote a product, a process or a business by reference to its environmental or social characteristics, or both, and excludes any mandatory label required under Union or national law;
  • (r) “certification scheme” means a third-party verification scheme that certifies that a product, process or business complies with certain requirements, that allows for the use of a corresponding sustainability label, and the terms of which, including its requirements, are publicly available and meet the following criteria:


 

  • (i) the scheme is open under transparent, fair, and non-discriminatory terms to all traders willing and able to comply with the scheme’s requirements;
  • (ii) the scheme’s requirements are developed by the scheme owner in consultation with relevant experts and stakeholders;
  • (iii) the scheme sets out procedures for dealing with non-compliance with the scheme’s requirements and provides for the withdrawal or suspension of the use of the sustainability label by the trader in case of non-compliance with the scheme’s requirements; and
  • (iv) the monitoring of a trader’s compliance with the scheme’s requirements is subject to an objective procedure and is carried out by a third party whose competence and independence from both the scheme owner and the trader are based on international, Union or national standards and procedures;


 

  • (s) “recognised excellent environmental performance” means environmental performance compliant with Regulation (EC) No 66/2010 of the European Parliament and of the Council (*2) or with national or regional EN ISO 14024 type I ecolabelling schemes officially recognised in the Member States, or top environmental performance in accordance with other applicable Union law;
  • (t) “durability” means durability as defined in Article 2, point (13), of Directive (EU) 2019/771;
  • (u) “software update” means an update that is necessary to keep goods with digital elements, digital content and digital services in conformity in accordance with Directive (EU) 2019/770 of the European Parliament and of the Council (*3) and Directive (EU) 2019/771, including a security update, or a functionality update;
  • (v) “consumable” means any component of a good that is used up recurrently and that needs to be replaced or replenished for the good to function as intended;
  • (w) “functionality” means functionality as defined in Article 2, point (9), of Directive (EU) 2019/771.

 

 

(2) Article 6 is amended as follows: (a) in paragraph 1, point (b) is replaced by the following:

 

  • ‘(b) the main characteristics of the product, such as its availability, benefits, risks, execution, composition, environmental or social characteristics, accessories, circularity aspects, such as durability, reparability or recyclability, 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.’;

 

(b) in paragraph 2, the following points are added:

 

  • ‘(d) making an environmental claim related to future environmental performance without clear, objective, publicly available and verifiable commitments set out in a detailed and realistic implementation plan that includes measurable and time-bound targets and other relevant elements necessary to support its implementation, such as allocation of resources, and that is regularly verified by an independent third party expert, whose findings are made available to consumers;
  • (e) advertising benefits to consumers that are irrelevant and do not result from any feature of the product or business.’;

 

(3) in Article 7, the following paragraph is added:

 

  • ‘7. Where a trader provides a service which compares products and provides the consumer with information on environmental or social characteristics or on circularity aspects, such as durability, reparability or recyclability, of the products or suppliers of those products, information about the method of comparison, the products which are the object of comparison and the suppliers of those products, as well as the measures in place to keep that information up to date, shall be regarded as material information.’;

 

(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:

 

  • ‘2a. Displaying a sustainability label that is not based on a certification scheme or not established by public authorities.’;

(2) the following points are inserted:
 

  • 4a. ‘Making a generic environmental claim for which the trader is not able to demonstrate recognised excellent environmental performance relevant to the claim.
  • 4b. Making an environmental claim about the entire product or the trader’s entire business when it concerns only a certain aspect of the product or a specific activity of the trader’s business.
  • 4c. Claiming, based on the offsetting of greenhouse gas emissions, that a product has a neutral, reduced or positive impact on the environment in terms of greenhouse gas emissions.’

(3) the following point is inserted:

  • 10a. Presenting requirements imposed by law on all products within the relevant product category on the Union market as a distinctive feature of the trader’s offer.’;

 

(4) the following points are inserted:
 

  • ‘23d. Withholding information from the consumer about the fact that a software update will negatively impact the functioning of goods with digital elements or the use of digital content or digital services.
  • 23e. Presenting a software update as necessary when it only enhances functionality features.
  • 23f. Any commercial communication in relation to a good containing a feature introduced to limit its durability despite information on the feature and its effects on the durability of the good being available to the trader.
  • 23g. Falsely claiming that under normal conditions of use a good has a certain durability in terms of usage time or intensity.
  • 23h. Presenting a good as allowing repair when it does not.
  • 23i.Inducing the consumer to replace or replenish the consumables of a good earlier than necessary for technical reasons.
  • 23j. Withholding information concerning the impairment of the functionality of a good when consumables, spare parts or accessories not supplied by the original producer are used, or falsely claiming that such impairment will happen.’.

 

2.5. The Green Claims Directive 

 

  • More formally, Proposal for a Directive on substantiation and communication of explicit environmental claims. The proposal aims to:
  • Make green claims reliable, comparable and verifiable across the EU; protect consumers from greenwashing; contribute to creating a circular and green EU economy by enabling consumers to make informed purchasing decisions; help establish a level playing field when it comes to environmental performance of products;
  • The Commission pages on the proposal are here; the draft directive itself is here. The directive is likely to be agreed in parliament by the end of 2024

 

 

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

C. Channel Rules

1. TV/Radio/VOD

Sector

SECTION C - TV INC VOD & RADIO

 

 

  • The content rules set out in section B apply – both the gambling-specific and the general rules, i.e. those that apply to all sectors; see General tab under content section B
  • Principal source of rules for gambling marcoms is the Gambling Code of Conduct (EN) and for general rules in Germany, the general principles on commercial communications EN / DE
  • The general channel (placement) rules also apply; these are set out under the General tab below and cover rules such as those for programme sponsorship and product placement (the prohibition on gambling marcoms in media aimed at young people extends to sponsorship and product placement); see below two bullet points also
  • Applicable legislation for all sectors is from the State Media Treaty MStV (DE / EN which carries provisions from the AVMS Directive, as amended by Directive 2018/1808. The Directive’s (not significant) amended marcoms content rules are here
  • The Interstate Treaty on the Protection of Minors JMStV DE / article 6 (EN) carries the minors-related rules from the AVMS Directive; the treaty was also amended November 2020 and extended scope online to include video-sharing platforms
  • Advertising must not be directed at minors or similarly vulnerable groups (2021 Interstate Treaty, S5)
  • Television and online advertising is not permitted except for lotteries and sports betting; this includes horse racing (2021 Interstate Treaty, S5)
  • Advertising sports betting on television immediately before or during the live broadcast of sporting events is not permitted (2021 Interstate Treaty, S5)
  • Commercial communication for gambling shall not be conveyed by media the majority of whose editorial content addresses minors (Art. 3.2, DW Gambling Code of Conduct)

 

 

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

General

SECTION C: TV & RADIO/ AV

 

 

APPLICABLE LEGISLATION AND GUIDELINES 

 

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

 

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

 

COMMERCIAL BROADCASTING GUIDELINES 

 

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

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

 

PUBLIC BROADCASTING GUIDELINES 

 

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

 

AUDIOVISUAL

 

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

 

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

 

CHILDREN

 

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

 

PRODUCT PLACEMENT 

 

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

 

SPONSORSHIP

 

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

 

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

 

 

RADIO

 

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

 

 

 

...................................................................
Read more

International

SECTION C TV/AV AND RADIO

 

 

EASA Jan 2024 update on the AVMSD

 

APPLICABLE SELF-REGULATION AND LEGISLATION

 

  • These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth programming; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
  • For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN 2024), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
  • Chapter B of the ICC Code linked above covers media sponsorship (Art. B12). The rules do not include product placement
  • The Audiovisual Media Services (AVMS) Directive 2010/13/EU is the key legislation; this was significantly amended by Directive 2018/1808, whose 'headline' was new rules for Video Sharing platforms (VSPS), but which made some other fairly significant amends to the AV framework, albeit none that had a notable impact on the content of commercial communications. The Directive's new/ adjusted rules in that context are assembled here and there's a helpful June 2021 commentary from Simmons & Simmons/ Lexology here and their June 2022 version is here. Some provisions are shown below

 

SPONSORSHIP (from the ICC Code)
2024 amends shown in italics

 

Article B12: Media sponsorship

 

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

LEGISLATION KEY CLAUSES 

 

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

 

Article 9

 

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

 

  1. Audiovisual commercial communications shall be readily recognisable as such. Surreptitious audiovisual commercial communication shall be prohibited
  2. Audiovisual commercial communications shall not use subliminal techniques
  3. Audiovisual commercial communications shall not:

 

  1. Prejudice respect for human dignity
  2. Include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation
  3. Encourage behaviour prejudicial to health or safety
  4. Encourage behaviour grossly prejudicial to the protection of the environment

 

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

 

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

 

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

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

 

Article 4a is found here 

 

 

.................................................................
Read more

2. Cinema/Press/Outdoor

Sector

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

None of these channels carry rules specific to them individually. The Gambling and general channel rules apply to all three channels, as follows

 

  • The content rules set out in section B apply – both the gambling-specific and the general rules, i.e. those that apply to all sectors; see General tab under content section B
  • Principal source of rules for gambling marcoms is the Gambling Code of Conduct (EN) and for general rules in Germany, the General principles on commercial communications EN / DEtogether with the significant legislative influence of the Unfair Competition Act UWG (EN)
  • Advertising must not be directed at minors or similarly vulnerable groups (2012 Interstate Treaty, S5)
  • Television and online advertising is not permitted except for lotteries and sports betting; this includes horse racing (2012 Interstate Treaty, S5)
  • Commercial communication for gambling shall not be conveyed by media the majority of whose editorial content addresses minors (Art. 3.2, DW Gambling Code of Conduct)

 

 

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

General

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

CINEMA

 

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

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

 

PRINT

 

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

 

Self-regulation

 

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

 

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

 

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

 

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

 

OUTDOOR

 

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

 

 

 

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

International

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

Applicable self-regulation and legislation 

 

  • These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth publications or films for children; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
  • For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN 2024), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below, 2024 amends in italics. In the context of ‘Native’ advertising in particular, articles 7 and 8 of the ICC Code shown below are relevant
  • The Unfair Commercial Practices Directive 2005/29/EC; re native advertising in particular in print, and all provisions related to misleadingness etc. apply in all media; some clauses below
  • In terms of channel rules, Chapter B (Sponsorship) of the ICC Code will apply; article B12 (shown below with 2024 amends)

 

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

 

Identification and transparency (Art. 7)

 

  • Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews.
  • Marketing communications, regardless of format or medium, should be easily identifiable, allowing consumers to clearly distinguish between commercial and non-commercial content
  • Identification disclosures should be prominent, clear, easily legible and appear in close proximity to the commercial message where they are unlikely to be overlooked by consumers
  • Marketing communications should be transparent about their true commercial purpose, and not misrepresent it. Hence, a communication promoting the sale of goods, or the contracting of a service should not be disguised, for example as news, editorial matter, market research, consumer surveys, consumer reviews, user-generated content, private blogs, private postings on social media or independent reviews etc.
  • In the case of mixed content, such as with news or editorial matter or social media, the marketing communication element should be made clearly distinguishable as such, and its commercial nature should be transparent. It should be so presented that it is readily and immediately recognisable as a marketing communication and where appropriate, labelled as such.

 

Identity of the marketer (Art. 8)

 

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

 

Legislation key clauses 

 

Annex I of the UCPD 

 

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

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

 

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

 

Article B12 ICC Code Media sponsorship

 

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

 

 

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

3. Online Commercial Communications

Sector

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

CONTEXT

 

  • This section provides the broad regulatory picture for gambling marcoms in the commercial digital environment in Germany. More specific channel rules such as email, OBA etc. follow
  • We do not address, obviously, the regulations around operational aspects of gambling operator websites; these will be subject to specialist advisor scrutiny anyway. Our scope is ‘only’ those elements of operator websites that constitute ‘advertising.’
  • In principle, advertising online is subject to the rules in owned and (some) earned space as well as paid. This makes the definition of advertising important, especially as there is so much content in a ‘blurred’ online environment. There isn’t an (obviously available) definition of advertising in Germany’s self-regulatory system
  • The Telemedia Act  (DE as amended 2020; EN key clauses) 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

 

STANDARD RULES 

 

  • The content rules set out in section B apply – both the gambling-specific and the general rules, i.e. those that apply to all sectors; see General tab under content section B
  • Principal source of rules for gambling marcoms is the Gambling Code of Conduct (EN) and for general rules in Germany, the General principles on commercial communications EN / DE, together with the significant legislative influence of the Unfair Competition Act UWG (EN)
  • Advertising must not be directed at minors or similarly vulnerable groups (2012 Interstate Treaty, S5)
  • Television and online advertising is not permitted except for lotteries and sports betting; this includes horse racing (2012 Interstate Treaty, S5)
  • Commercial communication for gambling shall not be conveyed by media the majority of whose editorial content addresses minors (Art. 3.2, DW Gambling Code of Conduct)
  • The general channel (i.e. placement) rules also apply; these are set out under the General tab below and include personal data processing rules as provided by GDPR and its national ‘flanking’ legislation the Federal Data Protection Act. Privacy issues should be reviewed with specialist advisors
  • Most online channels are now subject to rules from the State Media Treaty MStV (DE / EN), which replaced the interstate Broadcasting Treaty RStV in reflecting some amends to the AVMS Directive from Directive 2018/1808, acknowledging the ‘digitisation’ of audiovisual media services. Placement and content rules are not significantly changed: a summary of the Directive’s amends to commercial communication content requirements is here 
  • The 2020 amends of the Telemedia Act also associated with AVMSD amends include extension of scope to video-sharing platforms; specifically, commercial communications in user-uploaded videos are required to be identified to service users. See section 6 in the linked file here (EN)
  • Interstate Treaty on the Protection of Minors JMStV DE / article 6 (EN) is applicable; also amended 2020 to extend scope online to include video-sharing platforms 

 

SOCIAL MEDIA: ALL SECTORS,GAMBLING INCLUDED 

 

  • From the State Media Authorities, Guidelines for labelling advertising in online media (EN; May 2022) is applicable to all sectors but may be particularly relevant to gambling in light of the sector’s Influencer/ social media activity. The flyer shows identification and separation requirements by type of relationship (to the product/ brand) and online channel/ medium. More below under the General tab

 

 

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

General

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

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 

 

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

 

GUIDELINES

 

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

 

SOCIAL MEDIA: INFLUENCER MARKETING 

 

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

 

AD MARKERS/ IDENTIFIERS: HASHTAGS FOR SOCIAL MEDIA 

 

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

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

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

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

 

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

 

RELATED CASE

 

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

 

 

 

...............................................................
Read more

International

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

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 

 

CONTEXT

 

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

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

 

Legislation

 

Online Deals Do's And Don'ts For Online Business Under EU Law

Logan & partners/ Mondaq November 28, 2023

 

  • Directive 2002/58/EC on privacy and electronic communications
  • 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 

  •  

THE DSA AND DMA 

 

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.

 

Self-regulatory clauses 

 

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

 

  • Marketing communications should be properly identified, as such in accordance with Article 7 of the General Provisions subject descriptors should be accurate and the commercial nature of the communications, as well as the identity of the marketer, should be transparent to the consumers in accordance with Articles 7-8 of the General Provisions
  • Where a marketer has created or offered consideration for a product endorsement or review, the commercial nature should be transparent. In such cases, the endorsement or review should not state or imply that it is from or conferred by an individual consumer or independent body
  • Marketers should take appropriate steps to ensure that the commercial nature of the content of a social network site or profile under the control or influence of a marketer is clearly indicated and that the rules and standards of acceptable commercial behaviour in these networks are respected
  • Any image, sound or text which, by its size, volume or any other visual characteristic, is likely to materially reduce or obscure the legibility and clarity of the offer should be avoided

 

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

 

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

 

Legislative clauses

 

Directive 2002/58/EC; Article 13

Unsolicited communications

 

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

* Now repealed; GDPR applies 

 

 

Directive 2000/31/EC: article 5

 

General information to be provided

 

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

(a) The name of the service provider

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

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

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

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

(f) As concerns the regulated professions:
 

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

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

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

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

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

 

 

Section 2: Commercial communications

 

Article 6

 

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

 

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

 

Article 7

Unsolicited commercial communication

 

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

 

Directive 2018/1808 amending the AVMS Directive 

 

  • 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  

 

Guidance

 

European Data Protection Board / Article 29 Working Party

 

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

 

 

EASA Digital Marketing Communications Best Practice Recommendation. This document:

 

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

 

 

 

.....................................................................
Read more

4. Cookies & OBA

Sector

SECTION C: COOKIES AND OBA

 

Privacy issues should be reviewed with specialist advisors

 

COOKIES

 

  • While there are no rules particular to the gambling sector’s use of cookies, any form of targeting of minors is prohibited
  • The general cookie rules, i.e. those that apply to all sectors gambling included, are shown below under the General tab

 

OBA

 

  • The content rules set out in section B apply – both the gambling-specific and the general rules, i.e. those that apply to all sectors; see General tab under content section B
  • Principal source of rules for gambling marcoms is the Gambling Code of Conduct (EN) and for general rules in Germany, the General principles on commercial communications EN / DE, together with the significant legislative influence of the Unfair Competition Act UWG (EN)
  • Advertising must not be directed at minors or similarly vulnerable groups (2012 Interstate Treaty, S5)
  • Television and online advertising is not permitted except for lotteries and sports betting; this includes horse racing (2012 Interstate Treaty, S5)
  • Commercial communication for gambling shall not be conveyed by media the majority of whose editorial content addresses minors (Art. 3.2, DW Gambling Code of Conduct)
  • The general channel rules also apply; these are set out under the General tab below; the processing of personal data in this context may be subject to lawful processing rules from the GDPR; more below under the General tab

 

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

General

SECTION C: COOKIES AND OBA

 

 

Privacy issues should be reviewed with specialist advisors

 

NEWS/ ISSUES

 

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)

 

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

 

OBA SELF-REGULATION

 

 

GUIDANCE COOKIES AND OBA

 

 

KEY CLAUSES COOKIES RULES

 

Germany has not explicitly implemented the Cookie Directive, i.e. the amended Article 5 (3) of Directive 2002/58/EC. It was originally agreed by the relevant authorities that the following provisions from the Telemedia Act (TMG) fulfil the requirements. Subsequently, the DSK opinion is that Sections 12, 15 (1) and 15 (3) TMG ceased to be applicable when the GDPR came into effect. Provisions of the GDPR apply by default: Piece from Covington and Burling (EN). See note above re the finalisation of the new cookie rules under the Telecommunications and Telemedia Data Protection Act TTDSG (DE) in force December 1, 2021

 

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

 

CONSENT TO COOKIES

 

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

 

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

 

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

 

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

 

OBA

 

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

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

 

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

 

 

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

 

 

 

.........................................................................
Read more

International

SECTION C: COOKIES AND OBA

 

 

NEWS/ COMMENTARY

 

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

 

1. COOKIES

 

Applicable legislation, self-regulation and guidance 

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

 

 

Article 29/EDPB Working Party documents

 

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

 

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

 

Legislation

 

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

 

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

 

GDPR

 

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

 

2. OBA 

 

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

 

 

 

Opinion/ guidance 

 

Article 29 Working Party* documents

 

 

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

 

European self-regulatory programme for OBA

 

  • A good number of companies and organisations in Europe are engaged in the European self-regulatory programme for OBA, administered by the European Interactive Digital Advertising Alliance (EDAA http://www.edaa.eu). The OBA Icon, which can be found on digital advertising and on web pages to signal that OBA is on those sites, is licensed to participating companies by the EDAA. The consumer is provided with a link to the OBA Consumer Choice Platform - http://www.youronlinechoices.eu/ - a pan-European website with information on how data is used, a mechanism to ‘turn off’ data collection and use, and a portal to connect with national Self-Regulatory Organisations for consumer complaint handling
  • EDAA has published their latest (2021) European Advertising Consumer Research Report, which provides an overview of respondents’ attitudes and awareness of the European Self-Regulatory Programme for Online Behavioural Advertising (OBA) in ten European markets (Belgium, France, Great Britain, Germany, Ireland, Italy, Poland, Romania, Spain & Sweden). Read the full report here

 

 
.......................................................................
Read more

5. Emails & SMS

Sector

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

  • The content rules set out in section B apply – both the gambling-specific and the general rules, i.e. those that apply to all sectors; see General tab under content section B
  • Principal source of rules for gambling marcoms is the Gambling Code of Conduct (EN) and for General rules in Germany, the General principles on commercial communications EN / DEtogether with the significant legislative influence of the Unfair Competition Act UWG (EN)
  • Advertising must not be directed at minors or similarly vulnerable groups (2012 Interstate Treaty, S5)
  • Television and online advertising is not permitted except for lotteries and sports betting; this includes horse racing (2012 Interstate Treaty, S5)
  • Commercial communication for gambling shall not be conveyed by media the majority of whose editorial content addresses minors (Art. 3.2, DW Gambling Code of Conduct)
  • The general channel rules also apply; these are set out under the General tab below and cover rules such as those for processing personal data, which in this context may be subject to lawful processing rules from the GDPR; more below under the General tab. Privacy issues should be reviewed with specialist advisors
  • If a marketing communication constitutes an ‘Invitation to Purchase’ Definition A commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase Section 5a of the Unfair Competition Act (EN) applies
  • Rules on consent to commercial communications, and the information that must be included in those, are provided by The Telemedia Act  (DE as amended 2020; EN key clauses); Sections 5 & 6 are implementations from the e-Commerce Directive 2000/31/EC. More below under the General tab, as the rules apply to all sectors

 

 

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

General

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

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

 

CONTEXT 

 

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

 

Privacy issues should be reviewed with specialist advisors

 

 APPLICABLE LEGISLATION

 

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

 

APPLICABLE SELF-REGULATION

 

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

 

 

GUIDANCE

 

 

KEY CLAUSES: OPT-IN

 

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

 

Existing customer relationships; ‘soft opt-In’

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

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

INFORMATION OBLIGATIONS 

 
  • S. 6 (1) TMG: In the case of commercial communications which are telemedia or parts of telemedia Definition As a general rule, services that have previously been classified as teleservices or as media services now fall under the definition of telemedia. This applies, for example, to online shopping, online newspapers and newsletters, search engines, video-on-demand services, and the distribution of advertising e-mails.  Instead, the act now defines all electronic information and communication services (with the exception of telecommunication services consisting entirely of signal distribution via telecommunications networks and broadcasting) as telemedia https://www.lexology.com/library/detail.aspx?g=2bc98a4a-3b5f-451a-8f71-171cac8b7e12 service providers must observe at least the following preconditions (transposed from the e-Commerce Directive 2000/31/EC):
 
  1. Commercial communications must be clearly identifiable as such
  2. The natural or legal person in whose name the commercial communications are made must be clearly identifiable
  3. Promotional offers, such as discounts, premiums and gifts, must be clearly identifiable as such, and the conditions which are to be met to qualify for them must be easily accessible and presented clearly and unambiguously
  4. Prizes and games of an advertising nature must be clearly identifiable as such and the conditions of participation must be easily accessible and presented clearly and unambiguously
 
  • If commercial communications are dispatched by electronic mail, neither the name of the sender nor the commercial character of the message may be disguised or concealed in the heading and subject lines. Disguising or concealment takes place if the heading and subject lines are deliberately designed in such a way that, before the recipient views the content of the communication, he receives no or misleading information about the actual identity of the sender or the commercial character of the message (S. 6 (2) TMG)
  • An unacceptable nuisance shall always be assumed in the case of advertising using a communication ….c) where there is no valid address to which the recipient can send an instruction to terminate transmission of communications of this kind, without costs arising by virtue thereof, other than transmission costs at basic rates (S. 7, UWG)
 

THE IMPRINT 

 

 

Tell-a-friend case 

 

Privacy issues should be reviewed with specialist advisors

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

 
..............................................................
Read more

International

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

Direct Marketing of Goods and Services in EU

ICLG April 2024. Clear and informative and (EN)

2024 GDMA International email benchmark 

Posted June 2024

 

APPLICABLE SELF-REGULATION AND LEGISLATION 

 

  • For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN 2024), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
  • The channel rules shown here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth databases; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
  • Chapter C of the ICC Code (full code linked above): Direct Marketing and Digital Marketing Communications; General Provisions of the ICC Code will also apply
  • Directive 2000/31/EC on electronic commerce carries the rules on information to be provided in commercial communications in an e-commerce context; extracts below 
  • Directive 2002/58/EC on privacy and electronic communications carries the rules on privacy/ consent, setting out the prevailing European opt-in regime; extracts below
  • GDPR may apply if processing personal data; check privacy issues with specialist advisors 
  • See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here 

 

 
LEGISLATION

 

Directive 2002/58/EC; Article 13

Unsolicited communications

 

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

* Repealed; GDPR applies 

 

Directive 2000/31/EC: Article 5
General information to be provided in an e-Commerce context

 

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

 

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

 

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

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

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

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

 

Section 2: Commercial communications
Article 6

 

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

 

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

 

 

Article 7
Unsolicited commercial communication

 

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

 

 

EU guidance documents

 

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

6. Own Websites & SNS

Sector

SECTION C: MARKETERS' OWN WEBSITES

 

 

CONTEXT

 

The same principle that applies in paid space also applies in non-paid space such as marketers’ own websites and SNS spaces: if the communication from the website owner is advertising, it’s covered by the rules. As the lines between ‘editorial’/ information and advertising can be particularly blurred online, the definition of advertising is important: The Telemedia Act  (DE as amended 2020; EN key clauses) 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.

We do not address, obviously, the regulations around operational aspects of Gambling operator websites; these will be subject to specialist advisor scrutiny anyway. Our scope is ‘only’ those elements of operator websites that constitute ‘advertising.’

 

KEY RULES 

 

  • The content rules set out in section B apply to advertising on owned websites  – both the gambling-specific and the general rules, i.e. those that apply to all sectors; see General tab under content section B
  • Principal source of rules for gambling marcoms is the Gambling Code of Conduct (EN) and for General rules in Germany, the General Principles On Commercial Communications EN / DEtogether with the significant legislative influence of the Unfair Competition Act UWG (EN)
  • Advertising must not be directed at minors or similarly vulnerable groups (2012 Interstate Treaty, S5)
  • Television and online advertising is not permitted except for lotteries and sports betting; this includes horse racing (2012 Interstate Treaty, S5)
  • Commercial communication for gambling shall not be conveyed by media the majority of whose editorial content addresses minors (Art. 3.2, DW Gambling Code of Conduct). This point is included in the context of social media and those sites that may be advertiser owned in SNS

 

SOME GENERAL RULES, I.E. APPLICABLE TO ALL SECTORS  

 

  • Rules on consent to commercial communications should be subject to specialist advice; The DSK (data authority) opinion is that data protection sections 12, 15 (1) and 15 (3) of the Telemedia Act ceased to be applicable when the GDPR came into effect. Hence the provisions of the GDPR apply by default; best source of guidance is from the European Data Protection Board Guidelines 05/2020 on consent under Regulation 2016/679 
  •  Information that must be included in commercial communications in an e-Commerce context is provided by the The Telemedia Act  (DE as amended 2020; EN key clauses); sections 5 & 6 are implementations from the e-Commerce Directive 2000/31/EC 
  • Most online channels are now subject to rules from the State Media Treaty MStV (DE / EN), which replaced the interstate Broadcasting Treaty RStV in reflecting some amends to the AVMS Directive from Directive 2018/1808, acknowledging the ‘digitisation’ of audiovisual media services. Placement and content rules are not significantly changed: a summary of the directive’s amends to commercial communication content requirements is here 
  • 2020 amendments of the Telemedia Act, also transposing those from Directive 2018/1808, included requirements of video-sharing platforms, in this context specifically that commercial communications in user-uploaded videos must be identified to the (end) user by the service. See the linked file above
  • If a marketing communication constitutes an ‘Invitation to Purchase’ Definition A commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase Section 5a of the Unfair Competition Act (EN) applies
  • The German regulatory regime requires some specific information to be shown clearly on ‘business-like’ websites; these requirements are available under the General tab below, together with some other general rules on commercial communications in this environment
  • In particular, from the State Media Authorities Guidelines for labelling advertising in online media (May 2022, EN), is applicable to all sectors but may be particularly relevant to gambling in light of the sector’s Influencer/ social media activity. The flyer shows identification and separation requirements by type of relationship (to the product/ brand) and online channel/ medium. More below under the General tab

 

 

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

General

SECTION C: MARKETERS' OWN WEBSITES

 

 

CONTEXT

 

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

 

APPLICABLE LEGISLATION AND SELF-REGULATION 

 

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

 

KEY RULES

 

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

 

THE IMPRINT 

 

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

 

INFORMATION REQUIREMENTS

 

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

 

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

 

  • If commercial communications are dispatched by electronic mail, neither the name of the sender nor the commercial character of the message may be disguised or concealed in the heading and subject lines. Disguising or concealment takes place if the heading and subject lines are deliberately designed in such a way that, before the recipient views the content of the communication, he receives no or misleading information about the actual identity of the sender or the commercial character of the message
  • Video sharing platform providers must provide a function whereby users who upload usergenerated videos can state whether such videos contain audiovisual commercial communication
  • Video sharing platform providers must mark audiovisual commercial communications that users have uploaded to the video sharing platform service as such, insofar as they have become aware of this in accordance with paragraph 3 (above) or by other means

 

VLOGGING/ BLOGGING (extracts only)

 

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

OTHER SOCIAL MEDIA INTERACTIONS 

 

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

 

GDPR

 

Privacy issues should be reviewed with specialist advisors

 

  • In the event that data processing (which may include cookies, depending on their type) identifies individuals, then lawful processing rules from the GDPR may apply.
  • The DSK opinion is that Sections 12, 15 (1) and 15 (3) TMG ceased to be applicable when the GDPR came into effect. Provisions of the GDPR apply by default: Piece from Covington and Burling (EN)
  • The best source of guidance for the obtaining of consent is Guidelines 05/2020 on consent under Regulation 2016/679 from the European Data Protection Board 

 

 

 

........................................................
Read more

International

 

CONTEXT

 

The same principle that applies in paid space also applies in non-paid such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s ‘in remit’, i.e. covered by the rules. Clearly, much of a brand website may not be advertising, but it's important to understand what may 'qualify', and different countries have different definitions. In this international context the most relevant definition is from the ICC Code: ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’. 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

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

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

 

Standard rules

 

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

 

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

Unsolicited communications

 
  1. The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent
  2. Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use
  3. Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation
  4. In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited
  5. Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected
 
Directive 2000/31/EC on e-Commerce: Article 5
General information to be provided
 
  1. In addition to other information requirements established by Community law, Member States shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information
     
(a) The name of the service provider
(b) The geographic address at which the service provider is established
(c) The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner
(d) Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register
(e) Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
(f) As concerns the regulated professions
 
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
 
(g) Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment(29)
  1. In addition to other information requirements established by Community law, Member States shall at least ensure that, where information society services refer to prices, these are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs
 
Section 2: Commercial communications
Article 6
 
Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:
 
  1. The commercial communication shall be clearly identifiable as such
  2. The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable
  3. Promotional offers, such as discounts, premiums and gifts, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously
  4. Promotional competitions or games, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions for participation shall be easily accessible and be presented clearly and unambiguously
 
Article 7. Unsolicited commercial communication
 
  1. In addition to other requirements established by community law, member states which permit unsolicited commercial communication by electronic mail shall ensure that such commercial communication by a service provider established in their territory shall be identifiable clearly and unambiguously as such as soon as it is received by the recipient
  2. Without prejudice to Directive 97/7/EC and Directive 97/66/EC, member states shall take measures to ensure that service providers undertaking unsolicited commercial communications by electronic mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves
 
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
Article 7. Misleading omissions (includes reference to 'Invitation to Purchase')

 

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

 

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

 

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

 
Directive 2018/1808 amending the AVMS Directive 

 

  • 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  

 

GUIDANCE

 

EU Guidance/ opinion documents

 

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

 

SOCIAL NETWORK SITES

 

  1. FACEBOOK

  1. INSTAGRAM 
  1. TWITTER:
  1. YOUTUBE: advertiser friendly content guidelines here:
  1. SNAPCHAT:
  1. GOOGLE +
  1. TIK TOK

 

 

............................................................
Read more

7. Native Advertising

Sector

SECTION C: NATIVE ADVERTISING

 

 

DEFINITION AND KEY ISSUES

 

Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’. 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. The key general rule is that of identifiability/ disclosure. Various regulations, the most significant of which is the UWG, cover the rule in slightly different ways, but all are clear that advertising must be identifiable as such

 

CORE RULES 

 

  • Per above context, the content rules set out in section B apply – both the gambling-specific and the general rules, i.e. those that apply to all sectors; see General tab under content section B
  • Principal source of rules for gambling marcoms is the Gambling Code of Conduct (EN) and for general rules in Germany, the General principles on commercial communications EN / DEtogether with the significant legislative influence of the Unfair Competition Act UWG (EN)
  • Advertising must not be directed at minors or similarly vulnerable groups (2012 Interstate Treaty, S5)
  • Television and online advertising is not permitted except for lotteries and sports betting; this includes horse racing (2012 Interstate Treaty, S5)
  • Commercial communication for gambling shall not be conveyed by media the majority of whose editorial content addresses minors (Art. 3.2, DW Gambling Code of Conduct)
  • The principal ‘Identifiability’ rules are from the UWG (Act Against unfair Competition): failing to identify the commercial intent of advertising and all other kinds of commercial practices is deemed to be a misleading omission and therefore unfair competition
  • Additionally from the UWG: Annex 1, clause 11 B2C commercial practices which shall always be regarded as unlawful and unfair: Using editorial content for promotional purposes where the entrepreneur has paid for this promotion, without such connection being clearly identifiable from the content or by images or sounds (advertorial). More under the General tab below
  • 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

SECTION C: NATIVE ADVERTISING

 

 

DEFINITION AND KEY ISSUES

 

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

 

APPLICABLE LEGISLATION 

 

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

 

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

 

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

 

Case law 

 

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

 

APPLICABLE SELF-REGULATION 

 

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

 

Section 7 Press Code: separation of advertising and editorial content

 

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

 

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

 

 

 

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

International

SECTION C: NATIVE ADVERTISING

 

 

NATIVE

 

Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe's How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of native ads, some good practice recommendations, and a summary of EU rules. General rules, i.e. those that apply to all product sectors, are immediately below

 

APPLICABLE  SELF-REGULATION LEGISLATION AND GUIDANCE

 

ICC Advertising and Marketing Communications Code (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.' 

 

Standard rules

 

  • For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN 2024), which applies to all channels; the native technique is no different in that if it's advertising, it's subject to the rules
  • These channel rules are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth publications; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website

 

Self-regulation: key rules from the ICC Code
2024 amends in italics 

 

Identification and transparency (Art. 7)

 

  • Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews.
  • Marketing communications, regardless of format or medium, should be easily identifiable, allowing consumers to clearly distinguish between commercial and non-commercial content
  • Identification disclosures should be prominent, clear, easily legible and appear in close proximity to the commercial message where they are unlikely to be overlooked by consumers
  • Marketing communications should be transparent about their true commercial purpose, and not misrepresent it. Hence, a communication promoting the sale of goods, or the contracting of a service should not be disguised, for example as news, editorial matter, market research, consumer surveys, consumer reviews, user-generated content, private blogs, private postings on social media or independent reviews etc.
  • In the case of mixed content, such as with news or editorial matter or social media, the marketing communication element should be made clearly distinguishable as such, and its commercial nature should be transparent. It should be so presented that it is readily and immediately recognisable as a marketing communication and where appropriate, labelled as such.

 

 

Identity of the marketer (Art. 8)

 

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

 

Legislation 

 

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

Commercial practices which are in all circumstances considered unfair

 

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

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

 

 

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

8. Telemarketing

Sector

 

Following feedback, we no longer cover Telemarketing 

General

 

 

Following feedback, we no longer cover Telemarketing 

International

 

Following feedback, we no longer cover Telemarketing 

9. Direct Postal Mail

Sector

SECTION C: DIRECT POSTAL MAIL

 

  • Processing personal data (that which identifies an individual) in this context may be subject to lawful processing rules from the GDPR; more below under the General tab. Privacy issues should be reviewed with specialist advisors
  • Direct mail in most countries, Germany included, is based on opt-out consent (Section 7 (1.2) UWG), i.e. permissible unless the recipient objects, or has registered on the Robinson list equivalent
  • The content rules that are set out in section B apply – both the gambling-specific and the general rules, i.e. those that apply to all sectors; see General tab under content section B
  • Principal source of rules for gambling marcoms is the Gambling Code of Conduct (EN) and for general rules in Germany, the General Principles On Commercial Communications EN / DEtogether with the significant legislative influence of the Unfair Competition Act UWG (EN)
  • Advertising must not be directed at minors or similarly vulnerable groups (2012 Interstate Treaty, S5)
  • If a marketing communication constitutes an ‘Invitation to Purchase’ Definition A commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase Section 5a of the Unfair Competition Act applies
 

 

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

General

SECTION C: DIRECT POSTAL MAIL

 

 

OVERVIEW

 

Privacy issues should be reviewed with specialist advisors 

 

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

 

APPLICABLE LEGISLATION AND SELF-REGULATION

 

A. Legislation

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

 

B. Self-regulation and guidance 

 

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

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

 

B2. Code of Ethics from the DDV Deutscher Dialog Verband

 

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

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

 

C. Guidance/ case law 

Principle of opt-out consent; see WBZ Review EN

 

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

 

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

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

 

 

 

..................................................................................
Read more

International

SECTION C: DIRECT POSTAL MAIL

 

 

Applicable self-regulation and legislation 

 

Standard rules

 

  • For content rules, refer to the earlier content section B. The principal source of general international content rules is the ICC code linked immediately above, most of which content rules apply to all channels
  • The UCPD referenced and linked above will also apply to direct postal mail; this legislation provides a broad framework regulating commercial practices of all kinds; articles 6 and 7 establish regulation of misleading actions and misleading omissions respectively 
  • Channel rules in this international context are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth databases; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
  • There isn't really a common set of self-regulatory general channel rules that cross borders for direct postal mail (largely a market activity), though article 22 (data protection and privacy) of the iCC Code linked above comes closest, but there is a common principle: unless you have consent to process their personal data and send them material, in other words they have 'opted in', you can't send consumers marketing communications. Postal mail to e.g. 'the occupier' of individual addresses, is generally permitted, though some countries have arrangements whereby local communities display signs preventing, or trying to prevent, delivery.
  • From legislation, the GDPR will apply if processing personal data (that which can identify an individual)

 

 

Legislation

 

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

 

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

 

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

 

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

 

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

 

 

Guidance

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

 

 

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

Read more

10. Event Sponsorship/ Field Marketing

Sector

SECTION C: EVENTS/ SPONSORSHIP

 

  • Commercial communication for gambling shall not be shown on sports kits worn by sports teams comprising minors or conveyed in advertising and sponsoring campaigns that are directly related to minors (Art. 3.5 Gambling Code of Conduct)
  • Material associated with sponsorship of events is subject to the rules set out in content section B
  • Advertising must not be directed at minors or similarly vulnerable groups (2012 Interstate Treaty, S5)

 

From Commission Recommendation 2014/478/EU

 

  1. 46. Member States should ensure that sponsorship by operators is transparent and that the operator is clearly identifiable as the sponsoring party.
  2. 47. Sponsorship should not adversely affect or influence minors. Member States are encouraged to ensure that:

 

(a) No sponsorship is allowed of events designated for or mainly aimed at minors

(b) Promotional material of the sponsoring party is not used in merchandising designed for or mainly aimed at minors

 

  • 48. Member States should encourage sponsored parties to verify if the sponsorship is authorised, in accordance with national law, in the Member State where the sponsorship should take effect

 

ICC

 

  • General sponsorship rules, i.e. those that apply to all sectors gambling included, can be found in full under the General tab below. A valuable source of rules is Sponsorship Chapter B of the ICC Advertising and Marketing Communications Code. This code is referenced in adjudications by Germany’s Self-Regulatory Organisation Deutscher Werberat
 

 

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

General

SECTION C: EVENTS/ SPONSORSHIP

 

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 

 

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

 B1. Principles governing sponsorship

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

B2. Autonomy and self-determination

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

B3. Imitation and confusion

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

B4.  Ambushing of sponsored properties

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

B5.  Respect for the sponsorship property and the sponsor

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

B6. The sponsorship audience

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

B7.  Data capture/ data sharing

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

 B8.  Artistic and historical objects

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

B9.  Social and environmental sponsorship

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

 

 B10.  Charities and humanitarian sponsorship

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

B11. Multiple sponsorship

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

B12.  Media sponsorship

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

B13. Responsibility

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

 

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

 

 

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

 

 

.....................................................................
Read more

International

SECTION C: EVENTS/ SPONSORSHIP

 

 

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

 

Self-regulation

 

  • Advertising associated with sponsorship activity is likely to be subject to content rules; these can be found in the earlier content section B, or from the ICC Code linked below 
  • ICC Advertising and Marketing Communications Code (EN 2024): Chapter B Sponsorship. 2024 amends in italics 

 

B1: Principles governing sponsorship

 

  • All sponsorship should be based on contractual obligations between the sponsor and the sponsored party
  • Sponsors and sponsored parties should set out clear terms and conditions with all other partners involved, to define their expectations regarding all aspects of the sponsorship deal
  • Sponsorship should be recognisable as such
  • The terms and conduct of sponsorship should be based upon the principle of good faith between all parties to the sponsorship
  • There should be clarity regarding the specific rights being sold and confirmation that these are available for sponsorship from the rights holder. Sponsored parties should have the absolute right to decide on the value of the sponsorship rights that they are offering and the appropriateness of the sponsor with whom they contract
  • There should be clear communication about the specific rights available for sponsorship from the rights holder, including the timing of the sponsorship commitment and the scale of coverage, such as territory. Sponsored parties should retain the sole discretion to determine the value of the sponsorship rights they offer and the suitability of a potential sponsor
  • Furthermore, both parties should reserve the right to terminate the sponsorship agreement based on the terms outlined in the contract

 

B2: Autonomy and self-determination

 

  • Sponsorship should respect the autonomy and self-determination of the sponsored party in the management of its own activities and properties, provided as long as the sponsored party fulfills the obligations set out in the sponsorship agreement  meets the requirements set in the sponsorship agreement and those actions do not damage the reputation of the sponsor

 

B3: Imitation and confusion

 

  • Sponsors and sponsored parties, as well as other parties involved in a sponsorship, should avoid imitation of the representation of other sponsorships where such imitation might mislead or generate confusion, even if applied to non-competitive products, companies or events
  • Both sponsors and sponsored parties, along with anyone else involved, should avoid imitation of other sponsorships if it could mislead or cause confusion, even with non-competing products, businesses or events

 

 B4: 'Ambushing' of sponsored properties

 

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

 

B5: Respect for the sponsorship property and the sponsor

 

  • Sponsors should take particular care to safeguard the inherent protect the unique features including artistic, cultural, sporting or other content of the sponsorship propertyThey should avoid any abuse of their position that might damage the identity, dignity, or reputations of the sponsored party or the sponsorship property
  • The sponsored party should not obscure, deform or bring into disrepute the image or trade- marks of the sponsor, or jeopardise risk damaging the goodwill or public esteem associated with them

 

B6: The sponsorship audience

 

  • The audience should be clearly informed of the existence of a sponsorship with respect to a particular event, activity, programme including branded giveaways and similaor person and the sponsor’s own message should not be likely to cause offence. Due note should be taken of existing professional ethics of the sponsored party. Any posts on social media by the sponsored party should be transparent and properly identified. The sponsor should also be mindful of the professional values of the sponsored party and audience
  • This article is not, however, intended to discourage sponsorship of avant-garde or potentially controversial artistic/cultural activities, or to encourage sponsors to exercise censorship over a sponsored party’s message
  • Branded sponsorship or entertainment events that primarily target children or teens should comply with Chapter E – Children and Teens

 

B7: Data capture/ data sharing

 

  • If an individual’s personal data are used in connection with sponsorship, the provisions of article 19 22  are applicable

 

B8: Artistic and historical objects

 

  • Sponsorship should not be conducted in such a way as to endanger artistic or historical objects
  • Sponsorship should not put art or historical items at risk
  • Sponsorship that aims to safeguard, restore, or maintain cultural, artistic or historical properties or their diffusion, should respect the public interest related to them
  • Where a sponsorship is meant to protect, restore, or maintain cultural, artistic or historical properties or spread awareness about them, it should respect the public interest in them

 

B9: Social and environmental sponsorship

 

  • Both sponsors and sponsored parties should take into consideration the potential social or environmental impact of the sponsorship when planning, organising and carrying out the sponsorship
  • Any sponsorship message fully or partially based on a claim of positive (or reduced negative) social and/or environmental impact should be substantiated in terms of actual benefits to be obtained. Parties to the sponsorship should respect the principles set out in the ICC Business Charter for Sustainable Development.
  • If a sponsorship message claims to have a positive social or environmental effect (or less harm), it should be backed up with evidence of actual benefits. Parties to the sponsorship should respect the principles set out in the ICC Business Charter for Sustainable Development
  • Any environmental claim made with respect to the sponsorship should conform to the principles set out in Chapter D, Environmental Claims in Marketing communications
  • If the sponsorship makes any environmental claims, they should align with the rules in Chapter D and the ICC Framework for Responsible Environmental Marketing Communication

 

B10: Charities and humanitarian sponsorship

 

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

 

B11: Multiple sponsorship

 

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

 

 

...........................................................
Read more

11. Sales Promotion

Sector

SECTION C: SALES PROMOTIONS

 

 

CONTEXT

 

This website was created to set out the rules for international marketing communications and as such does not claim authority on the presentation of Sales Promotion (SP) rules, especially those from retail legislation. When we find relevant provisions in the course of what is extensive research, we will include them in this section

 

STANDARD RULES FOR GAMBLING MARCOMS

 

  • SP marketing communication material is subject to the content rules set out in our earlier content section B
  • Principal source of rules for gambling marcoms is the Gambling Code of Conduct (EN) and for general rules in Germany, the General Principles on Commercial Communications EN / DEtogether with the significant legislative influence of the Unfair Competition Act UWG (EN)
  • Advertising must not be directed at minors or similarly vulnerable groups (2012 Interstate Treaty, S5)
  • The gambling sector is particularly active in ‘promotional’ communications, for example in welcome bonuses. When these communications infringe, they are normally adjudicated on the basis of misleadingness, especially when terms and conditions are not made sufficiently clear and obvious, or do not properly support the offer. Misleadingness is best covered in this context by the UWG or Unfair Competition Act (EN) under Section 5

 

GENERAL PROMOTIONAL RULES APPLICABLE TO ALL SECTORS 

 

See General tab below for full rules for all sectors 

  • The UWG (see para above) also addresses under Annex 1 (‘Blacklist’) some practices regarding promotional/ competition communications that are prohibited. See full rules below under the General tab
  • S. 6 (1) of the Telemedia Act (TMG) DE / EN (trans of key provisions) In the case of commercial communications which are telemedia or parts of telemedia, service providers must observe at least the following preconditions:

 

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

 

 

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

General

SECTION C: SALES PROMOTIONS

 

 

CONTEXT

 

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

 

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

 

APPLICABLE LEGISLATION AND SELF-REGULATION 

 

 

1. KEY CLAUSES LEGISLATION
(non-exhaustive)

 

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

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

 

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

 

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

 

Games and prizes

 

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

Offers and conditions

 

  • S. 6 (1) Telemedia Act (TMG) DE / EN (trans of key provisions) In the case of commercial communications which are telemedia or parts of telemedia, service providers must observe at least the following preconditions:
     
  1. Commercial communications must be clearly identifiable as such
  2. The natural or legal person in whose name the commercial communications are made must be clearly identifiable
  3. Promotional offers, such as discounts, premiums and gifts, must be clearly identifiable as such, and the conditions which are to be met to qualify for them must be easily accessible and presented clearly and unambiguously
  4. Prizes and games of an advertising nature must be clearly identifiable as such and the conditions of participation must be easily accessible and presented clearly and unambiguously
  • (2) If commercial communications are dispatched by electronic mail, neither the name of the sender nor the commercial character of the message may be disguised or concealed in the heading and subject lines. Disguising or concealment takes place if the heading and subject lines are deliberately designed in such a way that, before the recipient views the content of the communication, he receives no or misleading information about the actual identity of the sender or the commercial character of the message
 

2. KEY CLAUSES SELF-REGULATION

 

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

 

Article A2. Terms of the offer

 

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

 

Article A4. Administration of promotions 

 

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

Article A6. Presentation to consumers 

 

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

 

Information requirements 

 

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

 

Information should include, where relevant:

 

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

 

Information in prize promotions 

 

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

 

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

 

 

 

....................................................................
Read more

International

SECTION C: SALES PROMOTIONS

 

 

CONTEXT

 

This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and consumer protection legislation, for example, are checked for any provisions that affect SP and included below. Content in SP material is likely to be subject to the rules set out in the earlier section B as well as more specific requirements related to pricing, promotional conditions etc. .

 

APPLICABLE SELF-REGULATION AND LEGISLATION 

 

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

 

SELF-REGULATORY CLAUSES 

 

ICC Code Chapter A Sales Promotion 

Clauses are from the 2024 edition of the Code 

 

A1: Principles governing sales promotions

 

  • All sales promotions should interact with consumers in a fair, transparent, respectful and honourable way while upholding the Code’s data protection and privacy principles
  • The design and implementation of sales promotions should align with the consumers’ reasonable expectations as set by the promotion
  • The administration of sales promotions and the fulfilment of any obligation arising from them should be prompt and efficient and consistent with the presentation of the promotion
  • The terms and conduct of all sales promotions should be transparent to all participants
  • All sales promotions should be framed in a way which is fair to competitors and others in the market
  • Sales promotions that primarily target children or teens should comply with Chapter E – children and teens
  • No promoters, intermediaries or others involved should do anything likely to bring sales promotions into disrepute

 

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:

  • Promotional items should be sufficient to meet anticipated demand consistent with the terms of the offer. If delay or any other change is unavoidable, consumers should be advised promptly, and necessary steps taken to adjust the promotion of the offer
  • Promoters should be able to demonstrate that they have made a reasonable estimate of the expected response before the event. Phrases like “subject to availability” and similar may be used when demand is significantly difficult to calculate, but not as a general means to relieve the promoter from the obligation to meet consumers’ legitimate expectations
  • When the acquisition of the promotional item is dependent on a purchase or multiple purchases, promoters should ensure promotional items are sufficiently available to match the number of purchases being made, also see Article A6 under Information requirements
  • Defective goods or inadequate services should be replaced, or appropriate financial compensation given. Any proven expenses reasonably incurred by consumers directly due to such deficiencies, should be refunded upon request as soon as possible
  • Complaints should be efficiently and properly handled

 

A5: Safety and suitability

 

  • Care should be taken to prevent promotional items, if used correctly, from exposing consumers, intermediaries, or any other persons or their property to any harm or danger
  • Where appropriate promotional items should be accompanied by any necessary warnings and safety advice. Promoters should ensure that their promotional activities are consistent with the principles of environmental and social responsibility and in particular take reasonable steps to prevent unsuitable, inappropriate or age-restricted materials from reaching children.

 

A6: Presentation to consumers

 

  • Complex rules should be avoided. Rules should be drawn up in language that consumers can easily understand. The chances of winning prizes should not be overstated
  • Where consumers are prompted to engage with content by clicking on a link, or using a similar mechanism, like voice or movement activation, it should be made clear beforehand what the outcome will be, e.g. by specifying the form and nature of the offer. Deceptive practices like “click to reveal code” only to present an offer, should not be used

 

 

Information requirements

 

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:

 

  • detailed and clear instructions on how to obtain or participate in the promotional offer, including the conditions for receiving promotional items, liability for associated costs, or taking part in prize promotions
  • the main characteristics of the promotional items being offered
  • any time limit on taking advantage of the promotional offer
  • any restrictions on participation (e.g. geographical, employment in a particular company, sector or activity or age-related), availability of promotional items, or stock limitations. In the case of limited availability, e.g. due to unexpectedly high demand or any other exceptional circumstance, the consumer should be informed about alternative arrangements or refunding policies
  • the value of any financial substitutes offered like vouchers, coupons, discount codes or stamps offered where a monetary alternative is available
  • any requirements such as automatic renewals or subscriptions
  • any use of data and privacy clauses
  • any costs involved, including shipping and handling fees taxes, tariffs or duties and payment terms
  • The promotor’s full name and address along with information on how to ask questions or lodge complaints.

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. 

 

Information in prize promotions

 

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:

 

  • an overview of the entry process
  • any rules governing eligibility to participate in the prize promotion, as well as any use of data and privacy implications
  • costs associated with participation, excluding communication costs at or below standard rate (mail, telephone and other devices)
  • restrictions or limitations on the number of entries
  • The number, value and nature of prizes to be awarded. If a cash alternative is available instead of a prize, that should be communicated
  • for skills contests, the nature of the contest and the criteria for judging the entries
  • the procedure for selecting winners and awarding prizes
  • the starting and closing dates of the competition
  • the timeline and procedure for notifying winners and publicising results
  • where appropriate, information that prizes may be subject to tax
  • the procedure and time frame for collecting prizes
  • where a jury is involved, the composition of the jury, or the criteria for selecting its members
  • if winners’ images, quotes, audiovisual content or winning contributions will be used in post-event activities and the terms for their use

 

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

 

LEGISLATIVE CLAUSES

 

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

 

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

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

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

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

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

 

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

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

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

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

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

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

 

there is no prize or other equivalent benefit, or

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

 

 

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

 

Article 1

 

The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices

 

Article 2

 

For the purposes of this Directive:

 

(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;

(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products

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

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

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

 

 

Article 3

 

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

 

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

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

 

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

 

Article 4

 

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

 

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

 

Article 5

 

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

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

 

 

 

.........................................................
Read more

D. Advice & Clearance

General

SECTION D SRO SERVICES

 

 

ADVICE AND CLEARANCE 

 

The German self-regulatory system has two organisations:

 

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

COMPLAINTS HANDLING 

 

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

COPY ADVICE 

 

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

 

 


 

 

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

Website:

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

Information in English:

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

 

COMPLAINTS HANDLING 

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

 

COPY ADVICE

 

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

 

 

CLEARANCE

 

Direct to broadcaster

Allow 3-5 days TV/VOD

For help contact the Traffic Bureau administration@trafficbureau.net

 

 

 

International

SECTION D: SRO SERVICES

 

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 

https://www.easa-alliance.org/publications/easa-best-practice-recommendations-digital-marketing-communications/

 

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

https://www.easa-alliance.org/publications/best-practice-recommendation-on-influencer-marketing-guidance_v2023/

 

 

 

 

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

E. Links

Sector

SECTION E: LINKS/ SOURCES

 

 

EUROPEAN LEGISLATION

 

GDPR

 

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

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

The GDPR 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. The French Data Protection Authority CNIL (see later in this section for details), provide a Guide for Processors here:

https://www.cnil.fr/sites/default/files/atoms/files/rgpd-guide_sous-traitant-cnil_en.pdf (EN)

 

European Data Protection Authority

Article 29 Working Party/ EDPB





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

https://edpb.europa.eu/.

 

Two more recent and significant documents:

 

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 of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (the ‘Unfair Commercial Practices Directive’ UCPD):

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

Guidance (2021):

https://ec.europa.eu/info/sites/default/files/c_2021_9320_1_ucpd-guidance_en.pdf

 

 

European Communication and Recommendation

 

In March 2011 the European Commission launched a consultation on online gambling services. In particular, the Commission asked for views on online commercial communication, sales promotions, direct marketing and sponsorship. Following its consultation, the Commission adopted the Communication Towards a comprehensive European framework on online gambling in October 2012, which set out the commission’s action plan for the next two years. Key objectives of the action plan included ensuring protection of minors and enhancing responsible advertising. The Commission Recommendation on ‘principles for the protection of consumers and players of online gambling services and for the prevention of minors from gambling online’ was published in July 2014. This is a Recommendation (not legally binding) on responsible gambling advertising, which aims to ensure that operators advertise in a socially responsible manner and provide key information to consumers. It also requires strict protection for minors:

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32014H0478

On 27 November 2015, gambling regulatory authorities of EEA Member States signed a cooperation arrangement to enhance administrative cooperation. The cooperation arrangement follows other initiatives announced in the Communication, 'Towards a comprehensive European framework for online gambling'.

 

 

More EU legislation is shown under the General tab below

 

National legislation

 

Gambling-specific

 

State Treaty on Gambling of 15 December 2011 (SächsGVBl. 2012, p. 275), which was amended by the State Treaty of 18 April 2019 (SächsGVBl., P. 640). The Interstate Treaty on Gambling 2012 is the principal statute covering both terrestrial and online gambling. Primary objectives are the prevention of unregulated and fraudulent gambling, the protection of minors and the ‘creation of conditions that fight addiction’. The Third Gambling Treaty Amendment (DE), which removed the controversial cap on numbers of licenses, but retained a ban of online casino offers, was approved by all the states in March 2019. Online Sports betting was permitted under the 2012 treaty; applications for further licenses are permitted ‘later in 2019’; the Third Amendment Treaty enters into force on 1st January 2020. Section 5 of the treaty provides that advertising must not be directed at minors or similarly vulnerable group, that misleading advertising, especially that containing inaccurate statements about the odds or type and amount of winnings, is prohibited, that TV and online advertising is not permitted except for lotteries and sports betting but that Advertising sports betting on television immediately before or during the live broadcast of sporting events is not permitted

https://revosax.sachsen.de/vorschrift/12482

 

2021 State Treaty on Gambling

 

On 1 July 2021, the State Treaty on the New Regulation of Gambling in Germany (State Treaty on Gambling 2021 – GlüStV 2021) came into force. It is the basis for the actions of the Gemeinsame Glücksspielbehörde der Länder (GGL). The objectives of the State Treaty on Gambling are of equal status and have been established as follows: The prevention of gambling addiction and compulsive betting and the creation of requirements for an effective combatting of gambling addiction, 2. the provision of a restricted and suitable gambling possibility as an alternative to illegal gambling that steer the natural betting urge of the population into optimised and monitored paths in addition to counteracting the development and expansion of illegal black-market gambling, 3. ensure a protection of the under-aged and gamblers, 4. ensure that gambling is carried out correctly so that gamblers are protected from fraudulent practice, which associated and accompanying crime that is associated with gambling are repelled, and that 5.the risks posed to the integrity of sporting competition during events and the accepting of sport bets. The achieving of these objectives necessitates the adoption of different measures for each of the gambling forms so as to do justice to the potential risks of addiction, fraud, manipulation, and crime risks that are particular to each of the forms. Further background to the state treaty here.

https://www.gluecksspiel-behoerde.de/images/pdf/201029_Gluecksspielstaatsvertrag_2021.pdf (DE)

 

 

Gambling authority GGL

 

From their website: 'The 16 German federal states have transferred the state supervision and control of national gambling possibilities to the Gemeinsame Glücksspielbehörde der Länder (GGL). The Gemeinsame Glücksspielbehörde der Länder (GGL) has been set up with effect from 1 July 2021 in accordance with the 2021 State Treaty on Gambling. It is located in Halle an der Saale. The 16 German federal states have commissioned the public authority as a public-law institution. The tasks that have been commissioned by the federal states shall be carried out step by step.

www.gluecksspiel-behoerde.de/de/

 

 

National legislation applicable to all sectors

 

The General tab below carries other legislation applicable to all sectors. We show below only those referenced in the preceding text

 

UWG

 

Act Against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb - UWG). 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: http://www.gesetze-im-internet.de/uwg_2004/BJNR141400004.html

EN: https://www.gesetze-im-internet.de/englisch_uwg/englisch_uwg.html#p0035

English translation as of September 2017

 

 

Channel legislation

 

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 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

 

AV/ Broadcasting and online

 

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

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

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

 

 

Guidelines below reference former Interstate Broadcasting Treaty

 

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 

http://www.g-regs.com/downloads/DETVGuidelines2012German.pdf (DE)

http://www.g-regs.com/downloads/DETVGuidelines2012English.pdf (EN)

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

In German:

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 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 (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 centralized 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

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

 

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

 

Guidelines below do not reflect amends to 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/ extend the legal requirements of JMStV above.

https://www.die-medienanstalten.de/fileadmin/user_upload/Rechtsgrundlagen/Richtlinien_Leitfaeden/JuschRiLi_der_Landesmedienanstalten_ab_15.10.2019.pdf  (DE)

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

 

 

Ad 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 German regulation below is marked 2023 and the English version 2022. We have not yet reconciled the two

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

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

 

 

Data protection: BDSG

 

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

The new law In German:

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

And an official translation In English:

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

This commentary from Intersoft Consulting is thorough:

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

 

 

 NATIONAL SELF-REGULATION

 

German Advertising Standards Council Deutscher Werberat; one of the two Self-Regulatory Organisations in Germany, DW deals with taste, decency and social responsibility issues via application of various codes. The Wettbewerbszentrale (see below) focuses on the statutory requirements of commercial practice. Deutscher Werberat is an institution of the 45 organisations represented by the German Advertising Federation (ZAW), which is funded by participants in the advertising market. DW is a founding member of EASA and ‘implicitly adheres’ to the ICC Code. DW operates a number of sector-specific codes as well as more general codes/ guidelines for commercial communications in English here; the codes are applicable to all media (except where identified), including online per this statement in 2011: DE / EN

 

 

WBZ

 

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

 

Guidance documents

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

 

International codes and guidance

 

Gambling-specific

 

EGBA

 

‘The EGBA standards complement the licensing requirements imposed by online gaming regulators in different jurisdictions in the European Union. The EGBA standards have been amended in February 2011 to incorporate the Remote Responsible Gambling Standards as agreed in the European Committee for standardisation (CWA 16259: 2011 –  ‘Responsible Remote Gambling Measures’). The EGBA standards, which fully include the CEN standards, are a compulsory membership requirement. Their compliance is verified by a mandatory annual audit carried out by eCOGRA http://www.ecogra.org/ an independent London-based ISO/IEC 17025 accredited testing agency and player protection and standards organisation. Non-compliance of a member with the standards would ultimately lead to expulsion from the association.’

https://www.egba.eu/responsibility/egba-standards/

 

ICC

 

ICC Advertising and Marketing Communications Code 2018 (EN):

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

 

Chapter A: Sales Promotion

Chapter B: Sponsorship

Chapter C: Direct Marketing and Digital Marketing Communications

Chapter D: Environmental Claims in Marketing Communications

 

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

https://iccwbo.org/news-publications/policies-reports/icc-resource-guide-for-self-regulation-of-online-behavioural-advertising/ (EN)

 

 

 

..............................................................
Read more

General

SECTION E SOURCES/ LINKS

 

 

EUROPEAN LEGISLATION

 

GDPR

 

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

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

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

 

European Data Protection Authority

Article 29 Working Party/ EDPB





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

https://edpb.europa.eu/.

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

Article 29 Working Party archives from 1997 to November 2016: 

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

Five more recent, significant documents:

 

 

Commercial practices: UCPD


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

 

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

 

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

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

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

 

The Omnibus Directive 

 

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

 

Pricing

 

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

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

 

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

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

 

Comparative advertising

 

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

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

 

Audiovisual media

 

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

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

 

AVMSD amendment

 

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

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

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

 

e-Privacy

 

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

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

 

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

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

 

e-Privacy Regulation draft (10 February 2021)

 

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

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

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

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

 

e-Commerce

 

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

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

 

The Digital Services Act

 

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

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

 

The Digital Markets Act

 

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

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

 

National legislation 

 

UWG

 

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

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

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

English translation as of April 2019

 

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

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

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

Pricing

 

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

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

 

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

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

 

 

Channel legislation

 

Online

 

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

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

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

 

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

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

Regulatory authority

 

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

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

AV/ broadcasting

 

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

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

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

 

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

 

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

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

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

 

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

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

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

 

Protection of minors

 

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

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

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

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

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

 

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

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

 

Social media guidelines

 

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

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

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

 

Data protection: BDSG

 

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

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

And an official translation In English:

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

This commentary from Intersoft Consulting is thorough:

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

 

In May 2021, the Bundestag approved the Telecommunications-Telemedia Data Protection Act (TTDSG; DE). The privacy provisions from the Telecommunications Act and the Telemedia Act are merged in this new main law, which will be in line with GDPR and the Eprivacy Directive 2002/58/EC. Section 25 for specifics on cookies; the TTDSG entered into force December 1, 2021.

 

 

Regulatory authorities

 

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

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

DSK

 

The Conference of German Data Protection Officers of the Federal Government and Federal States (DSK/ ‘Datenschutzkonferenz’ - Konferenz der Datenschutzbeauftragten des Bundes und der Länder) is an independent German advisory body on data protection and privacy. The conference is made up of the Federal Data Protection Commissioner and the Data Protection Commissioners of 16 Federal States. The DSK publishes guidelines for the GDPR, issuing 11 working papers to date; the 3rd is a guidance paper on processing personal data for marketing/ advertising purposes (see below). The DSK announced that provisions on data processing for marketing purposes in the Federal Data Protection Act will become obsolete due to the GDPR. In future, the main legal basis for data processing for marketing purposes will be consent, as provided for in Articles 6 (lawfulness of processing) and 7 (conditions for consent) of the GDPR. Guidance paper (DE) on the processing of personal data for marketing/ advertising purposes. From Covington January 2022: On 22 December 2021, DSK published its Guidance for Providers of Telemedia Services (Orientierungshilfe für Anbieter von Telemedien).  Particularly relevant for providers of websites and mobile applications, the Guidance is largely devoted to the 'cookie provision' of the German Telecommunication and Telemedia Privacy Act (TTDSG), which came into force on 1 December 2021. The publication focuses on the consent requirement for cookies and similar technologies, as well as relevant exceptions, introduced by the law; full article with extracts of the DSK guidance in English here and the guidance (in German) here.

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

 

The Civil Code

 

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

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

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

 

Freedom of advertising speech

 

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

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

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

 

NATIONAL SELF-REGULATION 

 

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

 

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

 

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

WBZ

 

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

 

Guidance documents

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

DDOW

 

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

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

 

DDV

 

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

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

 

Opt-out registers/ Robinson list

 

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

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

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

 

EASA

 

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

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

 

EASA’s Best Practice recommendations 

 

Digital Marketing Communications (2023)

Online Behavioural Advertising (2021)

Influencer Marketing (2023)

 

IAB Germany/ Europe

 

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

https://www.bvdw.org/ or

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

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

 

WFA

 

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

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

The WFA launched their Planet Pledge in April 2021

And Global Guidance on Environmental Claims April 2022

 

ESA

 

The European Sponsorship Association is here:

www.sponsorship.org

 

EU GUIDANCE

 

Environmental claims

 

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

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

 

 

 

 

 

..........................................................
Read more

International

SECTION E SOURCES/ LINKS

 

 

SELF-REGULATION 
 

ICC

 

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:

 

  • greater clarity in the scope and application to different forms of marketing communications
  • the inclusion of coverage for the use of algorithms and AI in preparing and delivering marketing communications
  • taking account of recent social and technological developments and the inclusion of specific provisions from chapters which are widely applicable to all marketing communications
  • encouraging mindfulness regarding diversity and avoiding objectification stereotypes
  • new provisions concerning anti-corruption and not inciting or condoning hate speech and disinformation
  • improved indications regarding claims (including aspirational claims) and substantiation
  • addressing influencer marketing and the responsibility of influencers and creators
  • updated provisions regarding environmental advertising and environmental aspects of sustainability
  • clearer rules in a separate chapter regarding children, teens and minors

 

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. 

http://www.iabeurope.eu/

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

https://www.iabuk.com/goldstandard

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

https://icas.global/about/

 

EASA: European Advertising Standards Alliance

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

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

 

Best Practice Recommendation on Digital Marketing Communications (updated 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: 

https://www.easa-alliance.org/publications/easa-best-practice-recommendations-digital-marketing-communications/

 

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.

https://www.easa-alliance.org/publications/best-practice-recommendation-on-influencer-marketing-guidance_v2023/

 

The European Interactive Digital Advertising Alliance (EDAA)

 

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

 

 

FEDMA

 

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

 

 

THE EU PLEDGE 

 

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

 

 

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

 

WFA

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

 

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

 

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

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

 

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

 

 

EUROPEAN LEGISLATION

 

Channel Regulations and Directives 

 

Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC. The General Data Protection Regulation (GDPR) came into force on May 25 2018, and is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018

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

 

Article 29 Working Party/ EDPB

 

The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Personal Data Protection Directive). It has an advisory status and acts independently of the European Commission. The arrival of the GDPR heralded the demise/re-working of A29WP, and its replacement by the European Data Protection Board: 

https://edpb.europa.eu/.

 

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

Article 29 Working Party archives from 1997 to November 2016:

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

More recent documents:

 

 

 

Key Directives in marketing communications

 

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

 

e-Privacy Regulation draft (10 February 2021)

 

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

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

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

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

 

e-Commerce

 

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

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

 

Pricing

 

Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked below.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006

 

Commercial practices 

 

Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ – UCPD). This is the European legislation that most impacts marketing and advertising in Europe. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.

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

 

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 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 success etc.) are not amended. Another significant aspect is the introduction of rules for video-sharing platforms in particular under articles 28a and 28b; new rules include the identification of commercial communications where known. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020.

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

 

Food Regulations

 

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

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

 

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

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

 

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

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

 

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

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

 

Audiovisual media 

 

AVMS Directive (incorporating some alcohol rules). Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive). Article 9 for General rules, 22 for Alcohol rules. Consolidated version following amends of Directive 2018/1808:

 

 

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

 

 

 

.........................................................................................
Read more
Reduce