The German Federal Court of Justice has ruled that newspaper advertorials should be clearly labelled with the word “advertisement”.
The German Federal Court of Justice (Bundesgerichtshof, BGH) has ruled that newspaper advertorials should be clearly labelled with the word “advertisement” (case ref. I ZR 2/11 GOOD NEWS II).
In this case, two media companies were in dispute over contributions published in the free advertising newspaper, “GOOD NEWS”. The contributions concerned sponsored content, or advertorials, which had been labelled with the words “sponsored by”.
The newspaper’s competitor, publisher of the “Stuttgart Weekly”, claimed this breached § 4 no. 11 of the German Unfair Competition Act. This paragraph stipulates that someone acts unfairly if they infringe legal provisions designed, in the interests of business, to regulate market activity.
The competitor accused the publisher of infringing § 10 Baden-Württemberg State Press Act. Paragraph 10 states:
“Where publishers of regular print publications or other persons responsible receive, demand or accept promise of payment for the publication of a contribution, the contribution shall be clearly labelled with the word “advertisement”, unless it is clearly recognisable as such through the arrangement and presentation.”
The competitor asserted that labelling the contributions with the words “sponsored by” was insufficient to make it clear that the content was an advertisement within the meaning of § 10 of the Baden-Württemberg State Press Act.
Strict labelling obligation
The BGH accepted the competitor’s arguments. The judges came to the conclusion that the strict labelling requirements are violated when publishers avoid the word “advertisement” in favour of less concrete terms. The court accepted that the term “sponsored by” was insufficient to clearly demonstrate the advertising nature of the content.
As soon as payment is accepted for editorial content, it becomes an advertorial. Such content must be explicitly labelled with the word “advertisement”. The law here is clear.