When the commercial comes on, the viewer turns the TV off. Ad blockers are becoming increasingly popular among internet users and television viewers. The German courts so far approve of these business models referring to the negative freedom of information of the individual, i.e. the freedom to expose oneself to as little advertising as possible.
The solution of the advertising industry is branded content. Advertising that is not annoying, but rather entertaining! But even the dream of entertaining advertising – a win-win situation for all parties concerned – can rapidly shatter before German courts. The Unfair Competition Act, the Interstate Broadcasting Treaty, the Telemedia Act and the State Press Act may require a labeling as advertising if the advertising character would otherwise be concealed to the consumer.
The purpose of all of these provisions is to protect the free decision of the consumer in two respects: First, he should have the opportunity to critically evaluate and question advertising, second to reject it. In the following we illustrate what should be considered to prevent a violation of the prohibition of concealed advertising at the example of two very relevant means of branded content:1. Advertorials
Advertorials constitute advertising embedded in editorial content. This can take place against payment, but also free of charge.
If a product or company is mentioned in an editorial environment (i.e. objective and neutral appearing content) against payment, such content will always be considered concealed advertising, if the consumer does not recognize it as advertising. The advertising character can be made clear by placement of a label, such as “advertising” or “advertisement”. But the content can also be sufficiently identifiable as advertising, if a branding appears before viewing the content which indicates its commercial nature.
Featuring a company or product within editorial content can be permissible within narrow bounds. In general, there is nothing wrong with featuring only one product; a principle of neutrality does not exist in this respect. The product or company may, however, not be promoted excessively in an advertising manner. Excessive advertising may be indicated if a product is portrayed in a very positive but general way under use of soliciting language and without actually discussing and analyzing the features of the product within a journalistic cause.
This problem is especially relevant at present in the context of YouTube vlogs (YouTube video blogs). Vloggers advance to become YouTube-Stars and monetarize their videos by targeted advertising or product placement. Thus, the advantages of a specific lipstick are examined in a make-up tutorial or a specific game is being played in a gamer vlog. Based on the growing significance of this form of advertising the state media authorities have issued guidelines, which can be retrieved at the following link and outline very plainly the labeling requirements in particular as regards product placement: http://www.die-medienanstalten.de/fileadmin/Download/ Publikationen/FAQ-Flyer_Werbung_Social_Media.pdf
(unfortunately only available in German). 2. Viral Marketing
Also, where branded content with advertising character is not embedded in an editorial environment, but rather, for example, on the website of the advertising company itself, a labeling should also occur. Image or advertising films are aimed at being shared with other users on blogs or in the social networks.
Even if the consumer recognizes the content as advertising after viewing it, he should already be able to decide to not look at it at all. The links to such contents provided e.g. via the Like-button should therefore already indicate the commercial character. A sufficient indication can the mentioning of the trademark in a form making clear that it links to content of the respective company.