The First Civil Senate of the Federal Court of Justice, which is responsible among other things for competition law, has ruled that a press company must clearly mark an editorial article in a newspaper paid for by a company with the term "advertisement".
The plaintiff publishes the "Stuttgarter Wochenblatt". The defendant is the publisher of the free advertising journal "GOOD NEWS". It published two articles in the June 2009 issue for which it had received a fee from sponsors. The defendant had indicated this with the note "sponsored by" and the graphically highlighted indication of the advertising company.
The plaintiff is of the opinion that this conduct violates section 4 no. 11 UWG in conjunction with section 10 Landespressegesetz Baden-Württemberg (LPresseG BW) because the publications are not sufficiently marked as advertisements. It therefore filed a claim for injunctive relief against the defendant.
The Regional Court sentenced the defendant as requested. The appeal against this ruling was unsuccessful. The Federal Court of Justice referred to the Court of Justice of the European Union the question of whether the provision of § 10 LPresseG BW, which, in addition to consumer protection, also serves to protect the independence of the press and in some cases imposes stricter requirements on the identification of editorial advertising than Directive 2005/29/EC on Unfair Commercial Practices, is in conformity with that Directive. The Court of Justice of the European Union has ruled that the scope of application of the Unfair Commercial Practices Directive does not apply to the present case.
The Federal Court of Justice dismissed the defendant's appeal and thus confirmed the prohibition pronounced by the lower courts. According to the findings of the Court of Appeal, the defendant had received remuneration for the publication of the two editorially presented articles. § Section 10 LPresseG BW does not require that the remuneration was paid for a specific content of the publication or for an article determined in advance. It only depends on the fact that the publisher of a periodical print work has received remuneration for a publication.
The strict requirement to identify advertisements is violated if the precise term "advertisement" is avoided and a fuzzy term is chosen instead. Labelling the contributions with the words "sponsored by" was therefore not sufficient to clarify the advertising nature of the publications.
Judgment of the Federal Court of Justice of 6 February 2014 , file number I ZR 2/11 - GOOD NEWS II
Lower courts:
LG Stuttgart - Judgment of 27 May 2010 - 35 O 80/09 KfH
Stuttgart Higher Regional Court - Judgment of 15 December 2010 - 4 U 112/10
and
BGH, Order of 19 July 2012, I ZR 2/11, GRUR 2012, 1056 = WRP 2012, 1219 GOOD NEWS I
ECJ, Judgment of 17 October 2013, C 391/12, GRUR 2013, 1245 = WRP 2013, 1575
Source: Presemitteilung of the BGH
Goldberg Attorneys at Law 2014
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
