Advertising in print media must be marked with "Advertisement"

In print media, readers repeatedly encounter articles which initially appear editorial in nature, but which upon closer examination are advertising that has not been marked as such. Under German law, this is unfair and thus anticompetitive. The subject matter of the referral to the Court of Justice of the European Union (EuGH) was the question of whether the publishing house could choose how to designate the advertising or whether the statutorily prescribed designation "Advertisement" must be used.

The Stuttgart weekly newspaper had asserted claims for injunctive relief under unfair competition law against a competing publishing company up to the Federal Court of Justice (BGH), because the latter had headlined two advertising reports with the designation "Sponsored by" instead of "Advertisement". In the opinion of the weekly newspaper, this was likely to create the impression of an editorial article among the public.

The competing publishing company defended itself against the unfair competition claims with the argument that German law violated the European Directive on unfair business practices. This provided that business practices are to be considered unfair if they employ paid editorial content in media for sales promotion purposes without this being clearly recognisable to the consumer. However, the Directive does not provide for how such a designation should be made.

The Federal Court of Justice (BGH) accordingly referred this question to the EuGH for decision.

Decision of the Court

In itsjudgment of 17.10.2013, Az.: C-391/12the Court of Justice of the European Union (EuGH) decided that the German legislator may configure the requirements for publishers in national law differently than for traders. Therefore, German law, which requires publishers to clearly mark publications for which payment is received with the keyword "Advertisement", does not conflict with European law. As long as comparable secondary law does not exist for the press sector, the obligation to mark with the keyword "Advertisement" is not objectionable under EU law.

Conclusion

According to the decision of the EuGH, it applies that press publishers must mark every publication in their periodic print works for which they receive payment with the term "Advertisement". Other forms of identification, such as the designation "Sponsored by", do not meet the statutory requirements. However, this designation is still not necessary if the payment nature of the article is already evident from the external presentation of the publication.