The First Civil Senate of the Federal Court of Justice, responsible inter alia for competition law, has ruled that a media company must clearly mark an editorial contribution paid for by a company in a newspaper with the term 'advertisement'.
The plaintiff publishes the 'Stuttgarter Wochenblatt'. The defendant is the publisher of the free advertising paper 'GOOD NEWS'. In its June 2009 issue, it published two articles for which it had received payment from sponsors. The defendant had indicated this with the note 'sponsored by' and the graphically highlighted name of the advertising company.
The plaintiff is of the opinion that this conduct violates § 4 No. 11 of the Unfair Competition Act (UWG) in conjunction with § 10 of the State Press Act of Baden-Württemberg (LPresseG BW), because the publications were not sufficiently marked as advertisements. Consequently, she sued the defendant for injunctive relief.
The Regional Court convicted the defendant as requested. The appeal against this decision was unsuccessful. The Federal Court of Justice referred a question to the Court of Justice of the European Union, asking whether the provision of § 10 LPresseG BW, which serves both consumer protection and the protection of press independence and in part imposes stricter requirements for the marking of editorial advertising than Directive 2005/29/EC concerning unfair commercial practices, is in conformity with this Directive. The Court of Justice of the European Union ruled that the scope of application of the Directive concerning unfair commercial practices is not open for the present case constellation.
The Federal Court of Justice rejected the defendant's appeal, thereby confirming the prohibition issued by the lower courts. According to the findings of the appellate court, the defendant had received payment for the publication of the two editorially designed contributions. § 10 LPresseG BW does not require that the payment was made for a specific content of the publication or for an article determined in advance. It only matters that the publisher of a periodical publication received payment for a publication.
The strict requirement for marking advertisements is violated if the precise term 'advertisement' is avoided and a vague term is chosen instead. Therefore, marking the contributions with the words 'sponsored by' was insufficient to clarify the advertising nature of the publications.
Judgment of the BGH of February 6, 2014, File number I ZR 2/11 – GOOD NEWS II
Lower Courts:
Regional Court Stuttgart – Judgment of May 27, 2010 – 35 O 80/09 KfH
Higher Regional Court Stuttgart – Judgment of December 15, 2010 – 4 U 112/10
and
BGH, Decision of July 19, 2012, I ZR 2/11, GRUR 2012, 1056 = WRP 2012, 1219 GOOD NEWS I
ECJ, Judgment of October 17, 2013, C 391/12, GRUR 2013, 1245 = WRP 2013, 1575
Source: Press release of the BGH
Goldberg Attorneys at Law 2014
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
