Press ads placed by Radio Galaxy promoted a “Write your own epitaph” competition. First prize was an all expenses paid funeral. The German Association of Undertakers was not impressed and took the station to court, crying foul under unfair competition laws. Kerstin Marek reports the “last judgment”.
Topic: Promotion marketing
Who: Association of German Undertakers v Radio Galaxy
When: March 2011
Where: Regional Court of Aschaffenburg
Law stated as at: March 2011
What happened:
In January 2011, the German broadcasting station “Radio Galaxy” published an advertisement in a local newspaper which looked like a death announcement. In fact, this notice was an advertisement for a contest. The participants were asked to hand in their own epitaphs. The winner was chosen out of the “coolest lines”. The prize offered was money to finance one’s own funeral.
The Association of German Undertakers condemned the contest and filed for an injunction. From their point of view, the competition was not only impious and tasteless but also contradicted German unfair competition law. In their view, it was unfair behaviour when a market participant violated the feelings of mourners and the bereaved. The contest would be a violation of human dignity. In reply Radio Galaxy submitted that they wanted to provoke a public discussion about the tabooisation of death in society.
In March 2011, the court rejected the application although it was not convinced of the fact that Radio Galaxy wanted to encourage a debate in society due to the design of the advertisement and the invitation to hand in “cool lines”.
The chamber ruled that the advertisement was neither unfair business conduct according to German competition law nor a violation of human dignity. The court stated that the fact that the advertisement might violate moral values of parts of the population or might be a nuisance for them could not necessarily be considered to be unfair conduct as the advertisement did not significantly impede the interests of competitors or consumers.
The law
In accordance with the Federal Constitutional Court in the Benetton case, the regional court decided in favour of strong emotional marketing as permitted matter.
The point of emotional marketing is to specifically use feelings in order to have a positive impact on the consumer’s choice. Advertisements in today’s world try more and more to address the consumer at emotional level. In Germany, the main rulings on the admissibility of such advertisements were given in the Benetton case (BVerfGE 102, 347, 12.12.2000, 1 BvR 1762/95 and 1 BvR 1787/95, GRUR 2001, 170ff – shocking advertisements I and BVerfG, 11.03.2003, 1 BvR 426/02 – in continuation of BVerfGE 102, 347).
In these cases, on the basis of the former Act against Unfair Competition, the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) had to decide whether advertisements of the fashion company Benetton had to be considered as being immoral or against human dignity.
One of the advertisements concerned showed a part of a human body, whereby the viewer’s gaze was led to his back, where the letters “H.I.V. positive” were written. In this case, the Court had to balance human dignity and the freedom of speech.
Commercial advertising is protected by freedom of speech provisions of the constitution. In principle, this freedom can be limited by the Act against Unfair Competition. However, a limitation must always significantly affect competition in order to be justified. In the Benetton case the court came to the conclusion, that the advertisement did not violate human dignity, as it was open to interpretation and did not contain a message that necessarily failed to give the required respect. The persons affected were neither mocked, nor lampooned nor humiliated nor was the suffering downplayed, supported or situated in a macabre or ridiculous context. The fact, that sorrow was a central theme in a commercial context, could be regarded as being strange or indecent but not as violation of human dignity.
Therefore, the present decision is fully in line with the jurisdiction of the Federal Constitutional Court.
Why this matters:
The decision of the regional court of Aschaffenburg matters as it is one of the first decisions under the new Act against Unfair Competition of 2004 regarding advertisements and human dignity. Being in line with the Federal Constitutional Court decisions in 2000 and 2003 on the basis of the old law, this decision provides lawyers and advertisers with legal security.
The ruling shows that the advertising market in Germany is largely liberalised. Immoral advertising messages are principally not seen as inadmissible according to unfair competition law. Nevertheless, with provocative or shocking advertisements one should still be aware of the limits of freedom of speech, especially as it concerns human dignity.
