12. July 2013
Under German competition law, product placement is illegal on the radio; but what is the position regarding print media? Here is an overview from Wilde Beuger Solmecke.
One thing is immediately apparent when flicking through the latest edition of the magazine “Grazia”. The holiday interview with Jürgen Klopp (Borrusia Dortmund’s trainer) reads less like a personal travel account and more like an advertisement for the new Opel (Vauxhall) Adam. Not only do the surrounding photographs make the new model stand out, but the car is lavishly praised in the text.
Is Klopp simply an enthusiastic fan of the Opel brand, of which he is an ambassador, or is it more likely the case, that readers are being exposed to advertising. If so, then it is product placement! But isn’t product placement illegal?
Regulation on product placement
Express, medium-specific legal provisions on product placement apply solely to radio broadcasting.
Product placement is defined in § 2(2) no. 8 of the Interstate Broadcasting Treaty as:
“…the intentional presentation during programmes for commercial purposes by the broadcaster of products, services, names, trademarks; or other activities of a producer of products or provider of services, which without due notice, can mislead the general public.”
Commercial purposes are present if the broadcaster places products in return for “payment or other similar consideration”.
No express rules on product placement in print media
There is no such express provision for content on the internet and in print media.
Indeed, the only recourse is to rely on the general competition rules contained in the German Unfair Competition Act (Gesetzt gegen den unlauteren Wettbewerb, UWG).
Under this act there are a number of activities which are considered to be unfair commercial practices.
These include an express prohibition on using “editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial) (Paragraph 11 of the annex to § 3(3) UWG).
In addition, there is also a prohibition on deceiving consumers as to the commercial nature of an activity (§ 4(3) UWG), which can be applied where a trader escapes liability under the express prohibition above.
However, only business competitors and not private individuals, can bring a claim under the UWG rules. Furthermore, unlike in radio broadcasting where state broadcasting authorities pursue legal infringements, there is no specific authority with responsibility for monitoring breaches of the UWG in the print media and internet sphere.
Notice of advertising
The reason the accusations against Klopp arose are clear from the very first answer he gives in the interview:
“We go walking a lot here, but we also drive. We have an Opel Adam here – it is so small that it fits in any parking space, and yet the dog has space too.”
Underneath this supposedly private statement is a photograph in which Klopp is casually leaning against the car pointing at it.
It is hard resist the thought that ad writers would surely pay handsomely for such publicity.
The fact that companies are willing to pay celebrities to be product ambassadors and that celebrities undertake to advertise the products is run of the mill. There is generally no objection to this.
However, in this particular article, which was supposed to present a “Grazia exlcusive” on Klopp’s holiday, there was no mention that he would be representing Opel in his ambassadorship capacity.
The article also fails to point out that the interview took place at a PR meeting.
The positioning of the article is also questionable: directly following the interview is a double-page advert for Opel. Is this really just a coincidence?
Editorial content vs product placement
The objective of maintaining the separation between editorial content and advertising is to ensure that readers and consumers can easily recognise when they are being presented with an advertisement. The principle of separation therefore protects consumers from being misled.
As Klopp’s questionable interview fails to draw the reader’s attention to the contractual relationship between him and Opel, the content is capable of misleading readers as to the journalistic qualities of the interview.
“It is product placement par excellence,” commented Hendrik Zörner, spokesman for the German Association of Journalists (Deutscher Journalisten Verband). “The editorial team should have removed the passage when editing the text and used different photographs.”
Publisher admits mistake
The responsibility for drawing readers’ attention to placed products lies with those who publish an article; in this case with the magazine publishers.
Jonas Schmieder, spokesman for the magazine publishers (media group Klambt), admitted, “The editorial team made a clear mistake. Such interviews do not form part of Grazia’s usual content.” The magazine’s editor in chief, Claudia ten Hoevel, has yet to comment on the article.
Klopp rightly denied any responsibility. His agency, Project b emphasised, “As an ambassador, Jürgen Klopp supports the brand. There are no requirements as to where, when and how often he has to mention brand.” That the football manager should mention the brand at official engagements is something which should be expected, the agency maintains.
In light of similar accusations following the Champions League final in London, it seems however, that Klopp’s wholesome public image has already been tarnished.
Clearer division between advertising and editorial content
The German Press Council has recently reacted to similar publications by calling for a stricter observance of the principle of separation between editorial content and commercial interests.
Readers should be able to expect quality editorial content from articles and interviews in print media, which signify no indication of underlying advertising intentions. In such cases, they should not be confronted with product placement. This is true of fashion magazines as well as newspapers.
The well-known saying: “any publicity is good publicity”, finds its limits in product placement. The media is gambling with its credibility. Moreover, celebrities risk losing favour with their fans and brands suffer a loss of confidence. Product placement therefore damage all concerned including the media, businesses and celebrities.
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