On the advertising restrictions for lottery companies

Lottery companies are not generally prohibited from announcing high winnings in jackpot draws. This was decided by the First Civil Senate of the Federal Court of Justice, which is responsible for competition law, among other things.

The defendant Free State organises, among other things, the lottery LOTTO - 6 out of 49 in Bavaria. The plaintiff, which brokers gambling offers, considers it an inadmissible advertisement under the State Gambling Treaty (GlüStV) that the defendant announces jackpot draws with a value of more than € 10 million. In addition, the plaintiff objects to the fact that the defendant distributes a customer magazine with the title "Spiel mit".

The Regional Court dismissed the action. The Higher Regional Court confirmed this decision insofar as the plaintiff generally objected to the announcement of jackpot draws of more than € 10 million and the title of the customer magazine "Spiel mit". However, it prohibited the defendant from advertising jackpot draws in such a way that maximum winnings of € 26 or 29 million were announced in a highlighted manner with pictures of cheering people.

The Federal Supreme Court has ruled that not every announcement of a jackpot draw with a possible maximum prize of more than € 10 million is inadmissible.

According to Section 5 (1) GlüStV, advertising for public games of chance "must be limited to information and explanation about the possibility of gambling in order to avoid incitement while maintaining the objective of offering legal gambling opportunities". Since the jackpot lottery is a legal game of chance, factual information about the type and amount of the prizes offered is permitted. Moreover, according to the guidelines in the annex of the State Treaty on Games of Chance, the information about the maximum prize must be combined with information about the probability of winning and losing. This limits the luring effect of the maximum prize.

It is a question of the individual case whether the concrete design of the announcement of a jackpot draw is within the permissible limits. In this respect, the Higher Regional Court had rightly prohibited the specific advertisement of the defendant in which maximum winnings of € 26 or 29 million were announced in the typeface, combined with the image of cheering people.

According to the decision of the Federal Supreme Court, the title used by the defendant for its customer magazine is unlawful. The imperative "Play along" contains an invitation to participate in the game.

Judgment of the German Federal Court of Justice (BGH) of December 16, 2010 - I ZR 149/08 - "Spiel mit".
Previous instances:
OLG Munich -Judgement of July 31, 2008 - 29 U 3580/07 - OLGR Munich 2009, 19
Munich Regional Court I - Judgment of March 29, 2007 - 4 HK O 18116/06

Source: Press release of the BGH

Goldberg Attorneys at Law 2010
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist attorney for information technology law (IT law)
E-mail: info@goldberg.de