Judgment on surreptitious advertising by the LG Trier

Case law on the obligation to label advertising is constantly evolving. A recent ruling by the Regional Court of Trier (judgment of 24.11.2023, Ref. 7 HK O 13/23) is in line with previous case law and once again highlights the need for correct labeling of advertising – especially in the case of barter deals and the use of PR articles. This decision is part of a series of rulings that have redefined the boundaries between editorial content and advertising in the digital space in recent years. For example, the Higher Regional Court of Frankfurt clarified the labeling obligation for sponsored trips by influencers, while the Higher Regional Court of Cologne took a differentiated view of the labeling obligation for profiles with a large number of followers.

Interestingly, there is a tendency in case law to no longer base the necessity of advertising labeling solely on monetary compensation. In fact, non-monetary benefits, such as the use of PR materials or image rights, are increasingly seen as relevant factors for the labeling obligation. This is in line with the legislator’s considerations to regulate the labeling obligation for influencers anew and to focus on “real consideration”.

This development underlines the complexity of the legal assessment of advertising in the digital age and the need for media companies, influencers and agencies to continuously review and adapt their practices.

Surreptitious advertising without monetary payment: The judgment of the Trier Regional Court

In its ruling, the Regional Court of Trier clarified that surreptitious advertising can also exist even if no money is involved. This is particularly relevant for media companies and agencies that frequently work with barter deals or use PR articles where products or services are provided free of charge.

Key points of the judgment:

1. Definition of surreptitious advertising: The court defines surreptitious advertising as a representation in words or images of goods, services, names, brands or activities of a manufacturer that is intentionally intended for advertising purposes without being recognizable as such.
2. No monetary payment required: The court emphasizes that it is irrelevant whether a monetary consideration was provided for the advertising. The granting of rights of use to text and images can also be regarded as monetary consideration.
3. Intention is decisive: According to the court, the intention to advertise is decisive – not the actual payment of a fee.
4. Misleading the consumer: The court argues that surreptitious advertising can mislead the consumer by disguising the true purpose of the presentation.

Effects on media companies and agencies

This ruling has far-reaching consequences for the media industry:

1. Increased caution with barter deals and PR articles: Media companies and agencies must be particularly vigilant when they receive products, services or usage rights free of charge. Even if no money flows, an advertising label may be required.
2. Transparency is mandatory: To avoid surreptitious advertising, media companies and agencies should always communicate transparently if they have received any form of consideration.
3. Rethink labeling requirements: Media companies and agencies should review their labeling practices and adapt them where necessary to ensure that they comply with current legal requirements.
4. Risk of warnings: Failure to comply with the labeling obligation increases the risk of warnings and legal consequences.

Legal classification

The Regional Court of Trier based its decision on Section 5a para. 4 SENTENCE 1 UWG. In doing so, it clarifies that the use of PR articles and image rights also qualifies as “similar consideration” within the meaning of Section 5a para. 4 sentence 2 UWG can be considered.

The court argues that the provision of a finished article and the granting of image rights constitute services of monetary value. This interpretation is in line with the intention of the legislator, who, in the explanatory memorandum to the law, mentioned commissions, products that may be used, press trips and the provision of equipment, among other things, as similar consideration.

It is also noteworthy that the court does not consider labeling as an “advertisement” to be mandatory. Rather, other terms such as “advertising” can also be used as long as the commercial purpose is made clear.

Conclusion and outlook

The judgment of the Trier Regional Court underlines the need for a clear separation of editorial content and advertising not only in the influencer sector, but also in the traditional media sector. It shows that the legal framework for media cooperations continues to require constant adaptation.

It is advisable for media companies and agencies to regularly inform themselves about the current legal situation and to seek legal advice in case of doubt. This is the only way they can ensure that their activities comply with applicable law and that the trust of their readers is not jeopardized by inadmissible surreptitious advertising. The future of media cooperations will largely depend on how well the industry succeeds in reconciling transparency and authenticity with legal requirements. The judgment of the Trier Regional Court underlines the need to remain vigilant even in the case of non-monetary agreements and to take the labeling obligation seriously.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.