Unlawful tobacco advertising on the Internet

Tobacco advertising on internet pages of tobacco manufacturers is prohibited. As the Federal Court of Justice (BGH) confirmed, websites of companies constitute services of the information society.

A tobacco manufacturer had advertised for its company on the homepage of its internet presence with an image depicting four cheerful-looking, casually styled persons who were consuming tobacco products.

A consumer protection association deemed this to be unlawful tobacco advertising and demanded that the tobacco manufacturer cease such activities. The first two instances shared the view of the consumer protection association.

Decision of the Federal Court of Justice (BGH) – Tobacco advertising on the Internet

By judgment of 05.10.2017 (AZ: I ZR 117/16), the Federal Court of Justice (BGH) dismissed the appeal of the tobacco manufacturer (Press Release No. 154/2017).

The image on the homepage of the internet presence constitutes advertising for tobacco products because the products of the tobacco manufacturer are brought closer to the visitor of the website and presented as attractive. This advertising takes place in a service of the information society, so that it is prohibited under the applicable Tobacco Products Act. According to the relevant Union law provisions, a service of the information society is any service supplied at a distance, normally against remuneration, provided electronically at the individual request of a recipient. The term encompasses also services which are not remunerated by those who receive them, such as online information services or commercial communications. It follows from this that the website of a company on which advertising is made for its products or services constitutes a service of the information society.

Furthermore, the homepage of a company, which can be accessed worldwide without restriction, is directed at the general public and is therefore covered by the prohibition on tobacco advertising in services of the information society.

Conclusion

Tobacco advertising in services of the information society is prohibited by law. As the Federal Court of Justice (BGH) has confirmed with the present decision, company websites also constitute services of the information society. With regard to the provision against remuneration, it is not necessarily decisive whether the recipients of the services are remunerated.