Labelling paid placement so it holds up
There is no list of approved words, there is a test. German competition law treats it as unfair to fail to make the commercial purpose of a commercial practice recognisable, unless that purpose is directly apparent from the circumstances. A paid placement inside editorial content is never apparent from the circumstances.
The sentence, and what it demands
The provision is short. Acting unfairly includes failing to make the commercial purpose of a commercial practice recognisable, where that purpose is not directly apparent from the circumstances. Two halves, and the second half decides most cases.
An advertisement in an advertising block is apparent from the circumstances. An article that reads like editorial writing and was paid for is not, which is exactly the situation the rule addresses.
The provision also draws the outer boundary: there is no commercial purpose where the person received no payment or comparable consideration from the other business, unless such consideration is to be presumed. So an honest recommendation nobody paid for is not the target.
How to label without inventing a system
Put the label where the content is and make it visible before the content is read. A word at the top of the block does the job; a note in a policy page reachable in three clicks does not, because the reader has already read the content by then.
Count the places it applies. For a directory of 7 paid places plus 1 editorial article a week, that is 7 labelled blocks and 0 labels on the article, provided the article was not paid for. If it was, the count is 8.
Use a plain word in the language of the page, and use the same word every time. Consistency is doing the work here: a reader who has seen the same marker 3 times knows what it means without a legend, and a regulator reading 3 pages sees a system rather than an improvisation.
| Situation | Apparent from circumstances | Label |
|---|---|---|
| Advertisement in an advertising block | Yes | Not additionally required |
| Paid placement among editorial entries | No | Required |
| Article paid for by the subject | No | Required |
| Recommendation with no payment or consideration | No commercial purpose | Not required |
Where businesses get it wrong
The first mistake is a label that only appears at the end. By then the purpose of the rule has been defeated, because the content was read as editorial.
The second is a euphemism. A word that requires explanation is not making the purpose recognisable, it is postponing it, and the fact that it sounds better is the reason it fails.
The third is a system that changes between pages. One marker on the home page, another in the listing and none in the newsletter is three answers to one question, and a reader who notices the difference has learned something you did not intend to teach.
Questions and answers
Which word do I have to use?
Where does the label go?
Does an unpaid recommendation need a label?
What about a discount instead of money?
Sources
- Section 5a Gesetz gegen den unlauteren Wettbewerb (UWG) The recognisability duty and the boundary where no consideration was received
- Section 5b Gesetz gegen den unlauteren Wettbewerb (UWG) The related disclosure duty for consumer reviews
