Should we all ban advertising Why

Misleading advertising

Advertising tries to present its own products in the best possible light. However, the marketing must not go so far that the targeted consumers or other market participants are deceived. Here you can find out which rules have to be observed.

What is misleading advertising?

The concept of Deception is a central term of the integrity or Competition law, which is codified in the law against unfair competition (UWG). In this law the Rules of the market defined, i.e. regulates what an entrepreneur is allowed to do and what not. The prohibition of misleading is of crucial importance. It basically says that an entrepreneur does not mislead a consumer andto induce the consumer to take a commercial actshould .

To avoid the concept of misleading advertising (resp. rightmisleadingbusiness act), it must first be explained what advertising is in the sense of the UWG. advertising is generally used in the UWG as business act Roger that. A businessplot is all that the Sales promotion, the Purchase of goods or the Execution of contracts serves. So is almost every business activity as business act to evaluate. advertising is thus a classic case of business action.

Any misleading business deal are prohibited unless they suitable are, To move the addressee to a business decisionthat he would not otherwise have met. Misleading an entrepreneur acts when the act false statements or toFraud appropriate information contains. Information are those statements that are fundamentally accessible to evidence are, consequently, it is about Facts. So lies misleading advertising always before if a Entrepreneur tries, to promote its sales while asserting untrue facts or expresses itself in such a way that ae the consumer can at least be deceived.

Prohibition of misleading advertising

Various provisions in competition law ensure that consumers should not be misled:

  • As sharpest sword can be found in Section 16 (1) UWG a criminal prohibition from certain misleading advertisements.
  • In addition, the so-called blacklist in the appendix to the UWG certain business acts that absolutely forbidden are and if they are present without further interpretation there is dishonesty in the act.
  • Finally in the §§ 5, 5a UWG regulates in which cases the consumer may otherwise be misled.

The criminal law prohibition of misleading people

who with publicly misleadingly advertises false information and at the same time the Appearance one particularly favorable offer wants to cause, can according to § 16 Abs. 1 UWG with a Imprisonment of up to 2 years to get punished.

An advertisement is always then publicwhen through one larger group of people can be perceived. That means in particular that everyone Websites represent a public advertisement. Anyone who deliberately provides information that can be proven and objectively untrue, and thus creates the possibility of misleading in order to present his offers in a particularly attractive way, is liable to prosecution.

But even beyond criminal liability, misleading advertising is unfair and inadmissible. The facts of the so-called black list, which can be found in the appendix to § 3 para. 3 UWG, are prohibited without ifs and buts. It will be there not checked, if behavior at all has an impact on the consumer's choices Has. These facts are not to be understood as examples, but as a concrete list of violations. Both misleading and aggressive actions are prohibited on the black list. This article is intended to limit itself to the elements of misleading information (numbers 1 to 24).

The following are not permitted under the black list:

1. the false statement by an entrepreneur that he is a signatory to a code of conduct;

Who claims to be one Code of Conduct to belong, but actually not do so, is acting unfairly. The reason: The entrepreneur thereby implies that he must adhere to the rules of the code, but is actually not obliged to do so. Companies can commit themselves to certain behavior in codes of conduct.

2. the use of quality marks, quality marks or the like without the required approval;

The protection of quality marks and quality marks is intended to protect consumer confidence in these marks. You should only be allowed to call yourself "TÜV-tested" if you have actually been checked. As examples of Certification or quality mark are well-known symbols like the Green Dot, DEKRA, trusted shops or fair trade, to call. But also lesser known seals like Bio-mineral water or that Seal of approval from the German High Pressure League were recognized by the Federal Court of Justice (BGH) and the Higher Regional Court (OLG) Koblenz.

3. the false statement that a code of conduct has been approved by a public or other body;

The claim that a code of conduct to which a company actually or allegedly belongs is recognized by a government or other body is also misleading and unfair. With this the entrepreneur indicates that the Code of Conduct, which in itself only represents a purely private-law voluntary commitment, too recognized by the state has been.

4. the false statement that an entrepreneur, a business act carried out by him or a product or service has been confirmed, approved or approved by a public or private body, or the false statement that the conditions for the confirmation, approval or approval have been met ;

Pretending to be confirmations, approvals or approvals by a public or private body is unfair. Such explanations are, for example, in leading a master craftsman or in the assertion that production is carried out under the constant control of a sworn expert auditor.

5. Offers of goods or services within the meaning of Section 5a (3) at a certain price if the entrepreneur does not explain that he has sufficient reasons to believe that he will not be able to offer these or similar goods or services for one to provide or to have made available for a reasonable period of time in an appropriate amount at the stated price (enticement offers). If the stock is shorter than two days, it is up to the entrepreneur to prove the adequacy;

The Ban on bait offers Always takes effect when the provider or advertiser even delivers the advertised goods not in stock or not in sufficient quantity Has. It does not necessarily have to be able to meet every demand, but at least the one that was to be expected. The aim is to prevent the customer from being lured into the advertiser's business with false promises.

6. Offers of goods or services within the meaning of Section 5a (3) at a certain price if the entrepreneur then, with the intention of selling another good or service instead, presents a faulty execution of the goods or service or refuses to show what he is doing has applied or refuses to accept orders for it or to provide the advertised service within a reasonable time;

Also the so-called "Bait-and-switch" method is always an unfair form of marketing. The seller initially advertises a certain product, but only presents a defective model to the customer in the shop or he refuses to sell the product that was advertised. As a rule, this is an attempt to sell the customer a higher-priced model.

7. the false statement that certain goods or services are generally available or only available under certain conditions for a very limited period of time in order to induce the consumer to make an immediate business decision without the consumer having the time or opportunity to make a decision based on information ;

Anyone who lies to a consumer that an offer only exists at this moment and that consumer so takes away the opportunity to make a thoughtful and informed decision, he acts unfairly. On the one hand, it is a misleading behavior, but on the other hand, the act is also aggressive as it builds up psychological pressure on the consumer.

8. after-sales services in a language other than that in which the negotiations were conducted prior to the conclusion of the transaction, if the language originally used is not the official language of the Member State in which the trader is established; this does not apply if consumers are informed before the transaction is concluded that these services will be provided in a language other than the language originally used;

If a consumer has conducted business negotiations and concluded a contract in a language that is not the national language at which the entrepreneur is based, then he can trust that he will also be able to provide customer services in this language.

The regulation of the black list does not cover the case that the contract was concluded in the national language and the customer service is provided in another language. The per se ban on the blacklist would be too harsh here, because it makes a difference whether the customer concerned speaks the other language (possibly better than the national language) or not.

9. the false statement or the creation of the incorrect impression that a product or service is marketable;

A product that is not marketable is practically worthless, potentially dangerous and cannot be sold. It goes without saying that a deception about this marketability is a misleading intervention in competition. In Europe, for example, electrical devices that are not certified according to the requirements of the European Union are not marketable.

10. the false statement or the creation of the incorrect impression that statutory rights represent a special feature of the offer;

The so-called Advertising that is taken for granted always occurs when the advertiser proves something to be his own service to which he is already legally obliged. This can be done, for example, in advertising with a two-year manufacturer warranty lie if so just thatstatutory warranty law is meant. Such a violation can also exist if with a insured shipping is advertised and it is not emphasized that the risk of the dispatch of the entrepreneur wearing. However, the behavior only constitutes a form of unfair competition if the consumer has the impression that the entrepreneur voluntarily grants him the advantages.

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11. the use of editorial content financed by the entrepreneur for the purpose of sales promotion, without this connection being clearly evident from the content or the type of optical or acoustic representation (advertising disguised as information);

If advertising and editorial content are mixed up, consumers are being misled if the advertising is not identified as such. This is because the consumer expects editorial content to be neutral and critical. This expectation is destroyed when a company has the editorial content produced to promote sales. This is now highly problematic and sometimes prone to warnings Influencer and Affiliate Marketing. The warning people in influencer marketing usually do not refer to the blacklist.

12. false information about the type and extent of a risk to the personal safety of the consumer or his family in the event that he does not purchase the goods offered or does not use the service offered;

If the entrepreneur paints the proverbial devil on the wall to scare the consumer and thus induce him to conclude a contract, then this is a violation of the UWG. Personal security is to be understood in such a way that there are dangers from criminal acts or natural events or other dangers to life, limb, freedom or property for the consumer or his family. If such a risk does not exist or the product sold does not reduce the risk, the information may be false.

13. Advertising for a product or service that is similar to the product or service of a particular manufacturer, if this is done with the intention of misleading about the commercial origin of the advertised product or service;

This provision is intended to protect the consumer from being misled. Because if a product imitates another and is advertised in such a way that it is difficult to distinguish it, it can Consumers fail to implement their informed and well thought-out purchase decision in the marketif he accepts the counterfeit offer.

14. the introduction, operation or promotion of a sales promotion system in which a financial contribution is required from the consumer for the possibility of obtaining remuneration solely or mainly through the introduction of further participants into the system (snowball or pyramid system);

The ban on Pyramid schemes or so-called progressive customer acquisition results from the functioning of these systems. A high profit opportunity is promised and at the same time the customer is asked to recruit new participants. The returns of the older participants are financed by the contributions of the new participants. Because in this way a exponentially increasing number of participantsrequired is break the Systems Sometime together. Since the remuneration promise made to the participants is misleading, these forms of distribution are a form of unfair competition.

15. the false statement that the entrepreneur will soon give up his business or relocate his business premises;

When a business is closed permanently, the consumer expects one Clearance sales and great deals. Who about it deceivesto give up his business or his branch takes advantage of this expectation. However, such misleading deception is not permitted under the UWG.

16. The statement that a certain product or service can increase the chances of winning a game of chance;

Inadmissible is also to assert you could be lucky by purchasing certain products to buy. It must be said that increase the chances of winning a game of chance. Gambling is not a given for every competition, but only if the profit depends on chance and participation is subject to a fee. The products must explicitly relate to influencing the chance of winning, such as the Astrological calculation of personal lottery winning days (OLG Stuttgart, ruling of November 13, 1987 - 2 U 93/87).

17. the false statement or the creation of the incorrect impression that the consumer has already won a prize or will win it or will win a prize through a certain act or obtain another advantage if such a price or advantage does not actually exist, or if in any case the possibility of obtaining a price or other advantage is made dependent on the payment of a sum of money or the assumption of costs;

Who claims that a consumer has won an award when it does not actually existt or is only distributed if the consumer incurs financial expenses of any kind (with the exception of minimum amounts), he is engaging in an improperly misleading commercial act. This cannot be cured by the fact that the entrepreneur informs in advance that the price is dependent on a financial expense, even if this precludes actual misleading.

18. the false claim that goods or services can cure diseases, functional disorders or malformations;

Since the per se prohibitions of the black list do not allow any leeway for judgment, the actual information is a product could cure a disease or other health impairment, only forbidden if a cure for this disease cannot be achieved at all. That is, it does not include if only the impression is given that the product can heal or if it is only claimed that the product can alleviate symptoms. However, it should be noted in this context that such statements, even if they are not included in the black list, can be unfair and misleading due to other regulations. The so-called Health claims, i.e. the assertion of a healing or alleviating effect, are, if they are untrue, also in § 3 sentence 2 No. 1 Medicines Advertising Act (HWG), in Section 8 (1) No. 2 Medicines Act (AMG) and at European level through Article 7, Paragraph 3 Food information regulation (LMIV) declared inadmissible. Likewise, the general prohibition of misleading competition law § 5 Abs. 1 UWG can lead to an inadmissibility in individual cases.

19. a false statement about market conditions or sources of supply in order to induce the consumer to purchase or use goods or services on less favorable terms than the general market conditions;

Competition law is intended to steer behavior on the market in such a way that consumers can make informed and informed decisions. Therefore, the entrepreneur is allowed to does not give the impression that it has a particularly prominent position in the market Has. So he must not falsely claim that he is the sole importer of certain products be. Likewise, the entrepreneur must not falsely state that certain products are just as expensive on the entire market when in fact significantly cheaper offers are available.

20. the offer of a competition or a prize draw, if neither the promised prizes nor a reasonable equivalent are awarded;

If a competition, then a Contest or a Competition are organized, then they have to advertised prices actually distributed become. It is therefore not permitted under competition law to withhold prices. However, the Price promised become. It is not enough to say: “Great prizes to be won.” Rather, reference must be made to a specific prize.

21. the offer of goods or services as “free”, “free of charge”, “free of charge” or the like, if costs are nevertheless to be borne for this; this does not apply to costs that are unavoidable in connection with the acceptance of the goods or service offer or for the collection or delivery of the goods or the use of the service;

Who his Services as free offers to go through later hidden costs To contest one's expense and profit behaves in an anti-competitive manner vis-à-vis the other market participants. However, it must be checked when an offer is actually presented as free. Because as soon as for the addressed public recognizable is that with the offer additional costs connected, the Blacklist no longer applied become. Unavoidable costs such as telephone or travel costs for the consumer to obtain the item are also excluded.

22. the transmission of advertising material, including a request for payment, if this gives the incorrect impression that the advertised goods or services have already been ordered;

When a consumer receives a letter asking them to pay an amount, in many cases they will simply pay the claimed amount. So that entrepreneurs do not take advantage of this and consumers do not doubt the payment claim with every invoice, the entrepreneur may do not create the impression by sending a commercial that the consumer has already placed an order.

23. the false statement or the creation of the incorrect impression that the entrepreneur is a consumer or does not work for the purposes of his business, trade, trade or profession;

The downside is that consumer protection also permeates competition law, since consumers are supposed to be protected from companies. The distinction between entrepreneur and consumer has different legal consequences. For example, consumers are allowed to exclude liability further than entrepreneurs when selling. And in terms of tax law, there is usually no VAT between consumers. This point on the blacklist is particularly relevant for used car dealers and eBay dealers. A used car dealer who untruthfully claims that he is acting for a private person is deceiving himself about his entrepreneurial status. And on the Internet, too, the transitions from private eBay sellers to Internet entrepreneurs are fluid, which is why eBay dealers often act in an anticompetitive manner without knowing it.

24. Falsely stating or giving the incorrect impression that customer service is available in connection with goods or services in a Member State of the European Union other than the one in which the goods or services are sold;

In the European internal market, consumers should be able to shop across borders without hindrance. In order for the consumer to be able to obtain sufficient information and not order a product from abroad that he cannot use, entrepreneurs must not truthfully claim that customer service available in a country of the European Union would. Customer service includes services such as installation, repair and exchange.

The prohibition of misleading advertising, § 5 UWG

In addition to criminal prosecution and blacklists, there is also general one Prohibition of misleading from § 5 UWG and § 5a UWG, after which one too Misleading by omission is possible. A misleading can always exist if a false statement or an act suitable for deception is carried out by the entrepreneur, which is likely to induce the addressee to make a decision that he would otherwise not have made.

According to Section 5 (1) UWG, either untrue or other information suitable for deception is misleading. Information are there all facts, which can be verified by evidence are. This information must be suitable for deception - for example, if it simply does not correspond to the truth. To a actual deception must with it did not come be. It is enough if the addressed public by specifying can be deceived. However, unlike the per-se prohibitions on the black list, suitability for deception must be clearly established in Section 5 of the UWG. The form in which the information is provided is completely irrelevant (see Section 5 (3) UWG). All that matters is that the content is communicated to the consumer.