Who: The 14 German Media Authorities
Where: Berlin, Germany
When: 18 October 2016
Law stated as at: 19 October 2016
The 14 Media Authorities in Germany are in charge of licensing and controlling as well as structuring and promoting commercial radio and television in Germany. On 18 October 2016 they published their updated issue of FAQs on advertising in social media. The FAQs deal with the strict German labelling regulations for advertising and product placement and were one of the authorities’ most visited publications within the past year.
While it is commonly known that German laws require advertisers to label their advertisements as such, it can be difficult to assess in what media and under what circumstances the labeling requirement kicks in.
For example Sec. 58 Para. 3 and Sec. 7 Para. 3 of German State Broadcasting Treaty (“RStV”) simply states that “advertising and teleshopping must easily be recognisable as such and distinguishable from editorial content.” Sec. 2 No. 7 RStV prohibits surreptitious advertising and Sec. 2 No. 8 RStV defines surreptitious advertising’ as “the representation in words or pictures of goods, services, the name, the trade mark or the activities of a producer of goods or a provider of services when such representation is intended by the broadcaster to serve advertising purposes and might mislead the public as to the actual purpose of the representation. Such representation is considered to be intended for advertising purposes, in particular if it is done in return for payment or for similar consideration”.
Similar provisions can also be found in other media-related laws, most notably the Telemedia Act (“TMG”) and the German Marketing Law (“UWG” – the relevant statute is called “Gesetz gegen den unlauteren Wettbewerb”, which is frequently but incorrectly translated as Act against Unfair Competition).
In relation to social media platforms this begs a bunch of questions: Do you have to implement a disclaimer when you review a product on YouTube you actually bought? Will the legal situation be different if the product was given to you for free by the manufacturer? Will the disclaimer “sponsored video“ in an Infobox be sufficient? When does advertising start? In what cases will the editorial content of a blog or a post be considered as being influenced by companies?
The Media Authorities’ FAQs provide a brief guideline that addresses these kinds of questions. They also require advertisers who use video platforms to (i) show an overlay “advertisement” every time the product is presented or to (ii) show the notice “sponsored by … ” as an overlay at the beginning of the video, if it is also pointed out verbally.
Why this matters:
German labelling regulations for advertising apply to all online content including YouTube, Facebook, Snapchat, Twitter, Instagram and other social media platforms.
Since these social media platforms are easy to use for companies to run their content and increasingly popular influencer marketing campaigns, companies should ensure they are still well aware of the strict German law regime. The Media Authorities’ FAQs are a good and practical starting point.
If a blog, video etc. lacks adequate disclosure, this is considered illegal surreptitious advertising. Violations can lead to sanctions not just against the influencer, but also the brands they advertise. Competitors and watchdog groups can take legal action, including cease and desist letters and court injunctions. While this kind of enforcement has been scarce, this is an area that is increasingly on the radar of German authorities who have the power to impose fines and take other actions.
And of course being held liable for surreptitious advertising can lead to loss of a company’s credibility – which can be seriously damaging.
To the press release of 18 October 2016 regarding the new issue of the FAQ