surreptitious advertising

Surreptitious called loudly ORF Act and the German Interstate Treaty on Broadcasting "the mentioning or presentation of goods, a producer of goods or a provider of services in programs when it is provided by the organizer intentionally for advertising purposes and the lack of labeling the public as to the actual purpose of that mention or Presentation can be misleading. ”The dramaturgically unnecessary product placement is usually compensated with monetary or material donations.

Surreptitious advertising should not be confused with the provision of products , which is generally permitted in Germany and Austria, i.e. the dramaturgically necessary, free provision of, for example, required cars.

history

Edward Bernays had already resorted to surreptitious advertising for the American Tobacco Company in the 1920s : women, he found out, viewed cigarettes as phallic symbols of male power and therefore unsuitable for women in the 1920s. Bernays tried for ATC to make smoking attractive for women as well. He employed a group of women and asked them to dress up like suffragettes and go on strike. The women marched through New York's Fifth Avenue , and when newspaper reporters photographed them, they lit cigarettes and proclaimed them “torches of freedom”.

European Union

The “European Convention on Transfrontier Television” of the Council of Europe contains in Article 13 the requirement to separate advertising from the program (Paragraph 1) and the prohibition of surreptitious advertising (Paragraph 3): “Surreptitious advertising and teleshopping, in particular the display of products or services Services in broadcasts for advertising purposes are prohibited. ".

The European Union has recognized what it calls "advertising disguised as information", not only on television, as a misleading, always unfair business practice that is therefore to be prohibited in the Member States, which, like other unfair business practices, harms consumer interests and inhibits both entrepreneurs and consumers to participate in a functioning internal market and its freedoms. The Directive 2005/29 / EC of the European Parliament and of the Council of 11 May 2005 on unfair commercial practices in the internal market between businesses and consumers they therefore identifies one of 31 groups of cases and describes the method: "Using editorial content in the media for purposes the sales promotion has been used and the trader has paid for this sales promotion without this being clearly evident from the content or from images and sounds that are clearly recognizable for the consumer ”.

The Directive 2010/13 / EU of the European Parliament and of the Council on audiovisual media services (so-called. AVMS Directive, which the so-called. EC Television Directive has replaced,) defines surreptitious advertising as "the mentioning or presentation of goods, services, the name, of the brand or the activities of a manufacturer of goods or a provider of services in broadcasts, if they are intentionally intended for advertising purposes by the media service provider and can mislead the general public as to their actual purpose. A mention or representation is considered intended in particular if it is made for payment or a similar consideration. ”Surreptitious advertising is prohibited. A distinction is to be made between product placement and surreptitious advertising . It is defined as "any form of audiovisual commercial communication that consists in including or referring to a product, service or brand in exchange for consideration or similar consideration so that it appears on the program."

Situation in Germany

Law against Unfair Competition

According to Section 5a (6) UWG , surreptitious advertising is not permitted because every advertising measure must be designed in such a way that its advertising character can be recognized by the addressees. In addition, the UWG, which serves to implement Directive 2005/29 / EC, names “advertising disguised as information” as an always inadmissible case of consumer deception.

Interstate broadcasting treaty

The State Treaty on Broadcasting (State Treaty on Broadcasting in the United Germany) has taken over the definition of the EU Television Directive since the 4th State Treaty Amending Broadcasting (see above) and has adapted it in subsequent State Treaty on Broadcasting, most recently by the 13th. According to Section 7, Paragraph 7, Clause 1 of the Interstate Broadcasting Agreement, surreptitious advertising, product and topic placement and related practices are not permitted. The State Treaty breaks its fundamental ban on product placement with numerous exceptions (Sections 15 and 44 RStV). Product placement differs from surreptitious advertising primarily in its labeling; conceptually, it belongs to the definition of product placement (Section 2 (2) No. 11 RStV). If there is no labeling, there is conceptually no product placement and the presentation of goods or services in the editorial program must be checked according to the criteria of the ban on surreptitious advertising. Surreptitious advertising is basically independent of any consideration; the consideration is only the strongest indication of surreptitious advertising ("applies ... as intended for advertising purposes"). In contrast to this, remuneration is a constituent element in the definition of surreptitious advertising in the AVMSD. The Interstate Broadcasting Treaty seems to deviate from the AVMS Directive on this point when it declares the free provision of goods or services of significant value for product placement (Section 2 (2) No. 11 RStV). Ultimately, one can interpret the provision in such a way that the legislature spares the proof of the “similar consideration” by way of the irrefutable legal presumption in these cases. This should be based on the realistic assumption that the free provision of very valuable items for radio production brings clear monetary benefits for the organizer and that this is the “similar consideration”.

Code of Conduct

The German press has committed itself to the separation of advertising and editorial in section 7 of the press code: "Publishers and editors ... pay attention to a clear separation between editorial text and publications for advertising purposes."

Situation in Austria

Legal position

Several legal provisions provide for a clear separation of advertising content and editorial contributions, for example in Section 26 of the Media Act for all media and in Section 6 of the ECG for online providers. In addition, Section 13 (3) of the ORF Act, Section 38 of the Private TV Act or Section 19 (3) of the Private Broadcasting Act also provide for an obligation to identify or delimit camouflaged advertising. In the event of violations, there is a particular risk of administrative fines .

The Supreme Court has derived a general competition law labeling requirement for advertising content from these provisions . Surreptitious advertising is now expressly prohibited by law as an unfair (misleading) business practice (section 11 of the appendix to the UWG ).

2011 study

Excerpt from an Austrian tabloid. The advert marked too small may at first glance look like a TV tip.

In May 2011 the Austrian Ethics Council for Public Relations published a study on surreptitious advertising in Austria. It shows that improperly labeled advertising is a widespread problem in the Austrian media landscape. 550 articles in thirteen different print media were examined and evaluated. Katja Horninger, Zlatka Pavlova and Ursula Seethaler were in charge of the study carried out at the end of 2010, and they rated 325 of these contributions as critical. Confusion with newspaper articles is seen as the biggest problem. Although around 60 percent of the advertisements were labeled in an admissible form, they could hardly be distinguished from regular journalistic articles due to their similarity. This similarity is caused by the design of the font; this includes font size, font and font color. Graphic elements such as photos, text boxes and diagrams also contribute to confusion. The markings mentioned are often very small and hardly visible due to the positioning at the edges or at the end of the text. As a consequence of the study, the Ethics Council is calling for an amendment to the law, which for example provides for an extension of Section 26 in the sense of “clear” and “clearly visible” labeling, as well as a separate regulation for media cooperation and an increased penalty for undeclared advertising.

According to Section 26 of the Media Act, the terms “advertisement”, “paid activation” or “advertising” are permitted as labels. In practice, however, terms such as “With the friendly support of”, “An initiative by”, “In cooperation with”, “Paid special supplement”, “Promotion”, “This special.” Are used primarily for special pages, series, sections and special supplements is financially supported by “used.

Situation in Switzerland

Legal position

The Federal Act on Radio and Television (RTVG) requires in Art. 9 a clear separation between advertising and editorial program parts; Advertising must be clearly recognizable as such. In Art. 10 surreptitious advertising is expressly prohibited. Sponsoring is permitted according to Art. 12, but is subject to strict conditions: Sponsors must be named, sponsored programs are not allowed to advertise the sponsor's goods or services.

Guidelines

The media-neutral principles of integrity in commercial communication of the Swiss Integrity Commission regulate in principle 3.12 the separation between editorial information and commercial communication. Surreptitious advertising is also expressly prohibited here.

literature

Christian Fuchs: It creeps quietly through my TV. Product placement and surreptitious advertising on public television , Berlin 2005, ISBN 3-89820-844-3

M. Graser / T. Stanley: Placement to Surge 25% in '06 . In: Advertising Age , Vol. 77 (2006), H. 35, p. 6

Stephan Leitgeb: The revision of the television directive. Overview of the main planned changes with special consideration of the liberalization of the ban on product placement , in: "Journal for Copyright and Media Law" 2006, p. 837 ff.

Michael Pießkalla / Stephan Leitgeb: Product placements on television - surreptitious advertising without borders? , in: "Kommunikation & Recht", 2005, p. 433 ff.

Alexandra Puff: Product Placement. The legal aspects of product placement , Nomos, Baden-Baden 2009, ISBN 978-3-8329-4631-9

Daniel Stenner: The permissibility of interactive and individualized advertising on television and in audiovisual telemedia . Publishing house Dr. Kovac, Hamburg 2009, ISBN 978-3-8300-4599-1 .