Digital advertising and marketing in Germany – Lexology

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Advertising and marketing
What rules govern digital advertising and marketing in your jurisdiction?
Digital advertising must comply with the Act on Unfair Commercial Practices, which regulates the market behaviour of individual companies. The act determines that – among other unfair practices as set out in the EU Unfair Commercial Practices Directive (2005/29) – a commercial practice that constitutes an ‘unacceptable nuisance’ to a market participant is illegal. An unacceptable nuisance is always assumed where advertising uses a medium that is suited to distance marketing and through which a consumer is persistently solicited, even if they have expressed an objection. An unacceptable nuisance is also assumed if advertising uses a medium:
This means that advertising must always be labelled as such. If AdWords, banners and pop-ups are used, they must correctly disclose their commercial character and may need to be appropriately labelled. Influencer marketing and viral marketing (eg, refer-a-friend schemes) should not be surreptitious advertising. Electronically supported refer-a-friend schemes have been extensively restricted in recent case law.
Digital businesses must also comply with data protection laws and the Telemedia Act. This particularly applies to tracking for advertising purposes and retargeting analysis of cookies, as well as of the use of ‘like’ buttons and Facebook custom audiences. It is common for consent to be obtained in order for the processing of data to be lawful. In addition, the consumer must always be informed about the purpose of the data processing.
Further, both ‘behind the camera’ and ‘in front of the camera’ rights (eg, copyright under the Copyright Act) and privacy and publicity rights must always be respected, especially when using picture material.
Various other laws apply to the offering of products and services online. Thus, an online offer for goods or services should always duly consider the potentially extensive information requirements under consumer rights legislation and the Unfair Commercial Practices Directive. For example, information on warranties under the Civil Code or regarding e-tailing of goods or environmental information under the Battery Act and the Electric Act may have to be included.
Are there any specific regulations governing the use of targeted advertising?
As targeted advertising entails the collection and analysis of personal data, data protection laws must be followed. In particular, tracking must be designed in such a way that is legally permissible. Currently, there is legal uncertainty regarding the lawfulness of tracking cookies. The EU Data Protection General Regulation (2016/679) must be complied with. How far the Telemedia Act is still to be considered is unclear.
In addition, the EU ePrivacy Regulation, once in force, will likely regulate the use of cookies and potentially other tracking methodology. It is clear that users must be informed of the use of cookies (eg, for pop-ups or banners). In the future, the user’s consent for the use of cookies may be required if the ePrivacy Regulation comes into force or the courts or regulators consider this to be necessary.
Moreover, the regulations under the Act on Unfair Commercial Practices and further specific laws must be complied with.
Are there any restrictions or limitations on goods and services that can be advertised, marketed and sold online?
In principle, any products can be offered online. However, various sector or product-specific laws must be observed. For example, the sale of alcohol or tobacco requires age verification and is also subject to sector-specific advertising restrictions (partly with a view to protecting minors). This also applies to games or films with age restrictions.
For electrical appliances, certain labelling and registration obligations apply (eg, for old electrical appliances). Foods must highlight certain information so that the consumer is informed about ingredients and values under the EU Food Information Regulation (1169/2011). The sale of chemicals must be accompanied by certain warnings under the EU Registration, Evaluation, Authorisation and Restriction of Chemicals Regulation (1907/2006) and the Law on the Protection against Dangerous Substances. Specific rules apply to almost all industries (eg, cosmetics and textiles), and consequently, any business seeking to sell products online should ensure that the products are advertised according to such rules.
Spam messages
What rules and restrictions govern the sending of spam messages?
Section 7 of the Act on Unfair Commercial Practices allows the sending of emails for advertising purposes only with the recipient’s consent. Such consent must be verified through a double opt-in method, under which the recipient ticks a box online and receives a verification email, which ensures that the recipient has actually given their consent.
By way of exception, email advertising is allowed under the EU ePrivacy Directive (2002/58) if:
If a recipient has declared their objection to receiving commercial communication, the sender should ensure that this person no longer receives such advertising in the future. The recipient may receive advertising again only once some prerequisites are met (eg, consent to receiving advertising content has been given again).
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