DR. SARAFI obtains preliminary injunction at Flensburg Regional Court — News on labeling requirements (advertising)
From our press archive. This communication gives the status of the original publication of 25 July 2024 again. Subsequent developments in the process are not automatically taken into account.
Flensburg, July 25, 2024 — Flensburg Regional Court enforces labeling requirements for surreptitious advertising. DR. SARAFI lawyers obtain a groundbreaking preliminary injunction against advertising material disguised as journalistic.
facts
A person has made defamatory statements on his blog on his business website, which he disguises as an information portal. He claims to be an independent journalist and thus implicitly invokes media law and freedom of speech. In reality, however, he is a competitor to our client and has disseminated a variety of false statements of fact and other inadmissible statements.
Extrajudicial action
Out of court, we gave him the opportunity to remove the defamatory texts and issue a declaration of injunctive relief. Since he did not comply with this, we applied for a preliminary injunction from the Flensburg Regional Court. The court upheld our request in full and prohibited the opponent from continuing to make the statements we have challenged.
Groundbreaking decision on mandatory labeling
Interestingly enough, the court followed our legal opinion that his blog posts actually represent surreptitious advertising and that he violates the labeling requirement under Section 5a (4) of the Unfair Competition Act (UWG).
For this reason, the Flensburg Regional Court also prohibited the opponent from writing commercial or advertising content in business transactions without disclosing the commercial or advertising purpose of the publication.
Transferability to other areas
This issue of the labeling requirement for (Schleich) advertising has become well-known among influencers who do not label their (Schleich) advertising with #Werbung or similar labels. We were able to explain to the court that contributions disguised as journalistic — so-called copywriting — may also be subject to labelling requirements, depending on the individual case.
Legal bases
According to Section 5a (4) UWG, the commercial purpose of a commercial act must be clearly stated, unless this results directly from the circumstances. The purpose of the provision is to protect consumers from misleading and is intended to ensure transparency in business transactions.
In its decision, the Flensburg Regional Court has clarified that this labeling requirement applies not only to classic influencer advertising, but also to:
- Blog posts that primarily appear as neutral information
- Supposedly journalistic content with a commercial background
- Copywriting disguised as independent reporting
- Editorially presented advertising content
Importance for practice
This decision has far-reaching significance for everyone doing business on the Internet. Anyone who presents commercial content as neutral information or journalism runs the risk of violating the UWG and being warned.
The labelling requirement always applies when:
- Content has a commercial purpose
- This is not immediately apparent from the circumstances
- There is a risk that consumers will be deceived about the advertising character
conclusion
The decision of the Flensburg Regional Court shows that the labeling requirement for advertising has a wide range of applications and is by no means limited to classic social media influencers. Even supposedly journalistic contributions may be subject to labeling if they actually pursue commercial purposes.
With this groundbreaking decision, DR. SARAFI lawyers have made an important contribution to legal development in this area and, at the same time, were able to successfully prevent defamatory statements against our client.