Q&A: Online advertising in Germany

Advertising

Regulation

What rules govern online advertising?

Internet advertising must comply with the Unfair Commercial Practices Act (UWG), which regulates the behavior of individual businesses in the marketplace. This law determines that an “unacceptable nuisance” to a market participant is illegal. An unacceptable nuisance is always presumed when the advertisement uses a medium suitable for distance marketing and by which a consumer is constantly solicited, even if he has expressed an objection. Unacceptable nuisance is also assumed if the advertisement uses a medium:

  • when the identity of the sender on whose behalf the communication is transmitted is concealed or kept secret;
  • which violates Section 6(1) of the Telemedia Act (TMG);
  • which induces the recipient to visit a website which infringes Article 6(1); Where
  • which does not provide any valid address to which the addressee can address the order to cease sending him further messages of this nature, without incurring any costs other than the transmission costs in accordance with the basic tariffs.

This means that advertising must always be labeled as such. If AdWords, banners and pop-ups are used, they must properly disclose their commercial nature and may need to be labeled appropriately. Influencer marketing and viral marketing (e.g. referral programs) should not be surreptitious advertising. E-assisted referral programs have been significantly limited in recent case law.

Digital businesses must also comply with data protection laws and the TMG. This applies in particular to tracking for advertising purposes and the retargeting analysis of cookies, as well as to the use of the “Like” buttons or Facebook Custom Audiences. In principle, it is necessary to obtain the prior express consent of users for the processing of data to be lawful. Furthermore, the consumer must always be informed of the purpose of the data processing.

In addition, the same laws apply to online advertising as to print advertising – for example, copyright, personal and publicity rights or information obligations regarding guarantees under the Civil Code. , the Battery Act or the Electricity Act.

Targeted advertising and online behavioral advertising

What rules govern targeted advertising and online behavioral advertising? Are special notices or consents required?

According to a judgment of the Court of Justice of the European Communities (Case C-673/17 – Planet49), the express prior consent of users is required both for the use of cookies (exception: technically necessary cookies) and for the use analysis tools such as Google Analytics. The requirement for prior express consent regarding cookies, targeting with or without cookies or other tracking technologies is now also legally implemented in Germany, namely in § 25 of the German Privacy Act telecommunications and telemedia data.

However, the individual requirements for such consent have not yet been definitively clarified. In particular, the General Data Protection Regulation (GDPR) requires informed consent, which means users need to know what they are consenting to. Therefore, full information should be provided on the specific use of cookies or other analysis tools. In practice, the user’s consent is generally obtained via “cookie banners”.

It is important to note that the area of ​​targeted advertising and online behavioral advertising will be subject to a European regulation, the ePrivacy Regulation, which will establish uniform requirements throughout Europe. However, it is not yet possible to predict when this regulation will be adopted and enter into force.

False advertising

Are there rules against misleading advertising online?

The treatment of misleading online advertising is governed by the UWG. Advertising is therefore misleading if it contains false information or other information that could mislead about certain circumstances. Prior evidence confirming the publicity statement in advance is not required. It requires that proof of the accuracy of the statement be provided only in the course of legal proceedings. This, in turn, must be held to high standards. If studies are provided as evidence, they must be carried out and evaluated according to the recognized rules and principles of scientific research.

In some cases, there are industry-specific regulations that apply in addition to the UWG. For example, under the Therapeutic Products Advertising Act, scientific evidence is required for advertising claims whose claimed therapeutic efficacy is disputed by experts, or for advertisers who do not have research results. scientifically substantiated.

Restrictions

Are there any digital products or services that cannot be advertised online?

In principle, any digital product can be offered online. However, in some cases, industry or product specific laws must be followed. For example, media (films, photos, games, etc.) advocating violence, of a pornographic nature or containing other content subject to the protection of minors cannot be offered online without the appropriate authorizations. Therefore, any business seeking to sell products online should ensure that products are advertised and offered in accordance with such industry or product-specific legislation.

Responsibility of the host

What is the responsibility of content providers and parties who only host the content, such as ISPs? Can other parties be responsible?

The liability of service providers is governed by the TMG. According to this provision, providers are only responsible for their own content (Section 7(1) TMG). Hosts are generally not responsible for content. It would be unreasonable to expect them to check all content. However, as soon as indications of infringements have been given, the hosting provider is obliged to block the infringing content and to prevent similar infringements (Section 10, TMG). Website providers and other telemedia providers are entirely responsible for their own content. They are also responsible for third-party content (for example, when using user-generated content). These providers are also responsible for links to illegal content, at least at the time they become aware that the content is illegal.