Pro­duct pla­ce­ment on the Inter­net

Horizon Article Product PlacementPro­duct pla­ce­ment on the Inter­net plays a role in almost every You­Tube chan­nel. In Ger­ma­ny, the­se have quite a few mil­li­on sub­scri­bers. With such a lar­ge reach, You­tube is thus also a popu­lar plat­form for adver­ti­sing for busi­nesses and retail­ers. This rai­ses the ques­ti­on of the ext­ent to which adver­ti­sing through pro­duct pla­ce­ment in Inter­net vide­os is per­mis­si­ble. Pro­ducts are often adver­ti­sed, tes­ted or raf­f­led. Do they need to be labe­led in the con­text of online vide­os? This paper will dis­cuss the cur­rent legal requi­re­ments.

Obli­ga­ti­on to label adver­ti­sing

Product placement on the Internet: Lorenz Buffalo and San Miguel
Pro­duct pla­ce­ment on the Inter­net: Lorenz Buf­fa­lo and San Miguel

As a gene­ral rule, adver­ti­sing and edi­to­ri­al con­tent must be reco­gniz­ab­ly sepa­ra­ted. This prin­ci­ple of sepa­ra­ti­on is inten­ded to enable the con­su­mer to build up the neces­sa­ry distance. A con­su­mer is more cri­ti­cal of an adver­ti­sing con­tri­bu­ti­on than of an edi­to­ri­al con­tri­bu­ti­on. For this to hap­pen, howe­ver, it must be reco­gnizable in the first place that it is adver­ti­sing. When this prin­ci­ple appli­es is regu­la­ted in various laws. The fol­lo­wing three laws play a role for Inter­net vide­os: the Tele­me­dia Act (TMG), the Unfair Com­pe­ti­ti­on Act (UWG) and the Inter­sta­te Broad­cas­ting Trea­ty (RStV).

Tele­me­dia Act

The first appli­ca­ble law is the Tele­me­dia Act. Inter­net plat­forms such as You­Tube are sub­ject to this law as tele­me­dia. Sec­tion 6 TMG sta­tes that

com­mer­cial com­mu­ni­ca­ti­on must be cle­ar­ly reco­gnizable as such

must. Com­mer­cial com­mu­ni­ca­ti­on in this case means adver­ti­sing, which also includes pro­duct pla­ce­ments.

Unfair Com­pe­ti­ti­on Act (UWG)

The UWG sti­pu­la­tes that the

com­mer­cial pur­po­se of a com­mer­cial act must be made known”,

unless it is direct­ly appa­rent from the cir­cum­s­tances, Sec­tion 5a (6) UWG. This appli­es in gene­ral to busi­ness actions, i.e. also to You­Tube vide­os, pro­vi­ded they are inten­ded to pro­mo­te the sale of goods/services. The­r­e­fo­re, if a video ser­ves such a pro­mo­tio­nal pur­po­se, this must not be dis­gu­i­sed.

Inter­sta­te Broad­cas­ting Trea­ty

The pro­vi­si­ons of the Inter­sta­te Broad­cas­ting Trea­ty are even more far-rea­ching. Howe­ver, Inter­net plat­forms are not broad­cas­ting. Howe­ver, the Inter­sta­te Broad­cas­ting Trea­ty con­ta­ins a pro­vi­si­on accor­ding to which the regu­la­ti­ons on adver­ti­sing prin­ci­ples also app­ly to cer­tain tele­me­dia, Sec­tion 58 (3) RStV. It has not yet been cla­ri­fied in case law whe­ther Inter­net vide­os fall under this. Howe­ver, if one looks at the wor­ding of the pro­vi­si­on, this con­clu­si­on is obvious. It sta­tes that on-demand audio­vi­su­al media ser­vices are

Tele­me­dia with con­tent that is simi­lar in form and con­tent to tele­vi­si­on and that is pro­vi­ded by a pro­vi­der for indi­vi­du­al retrie­val at a time sel­ec­ted by the user and from a con­tent cata­log defi­ned by the pro­vi­der.”

The only dis­pu­ted fea­ture in this defi­ni­ti­on is whe­ther the form and con­tent are simi­lar to tele­vi­si­on. This is neither cle­ar­ly defi­ned by the legis­la­tor, nor is the­re any cla­ri­fy­ing case law on this to date. Howe­ver, tele­vi­si­on has alre­a­dy lost many view­ers to the new tele­me­dia. The sta­te media aut­ho­ri­ties are the­r­e­fo­re also of the opi­ni­on that the­re is a simi­la­ri­ty to tele­vi­si­on, at least if the chan­nels have a lar­ge reach. The­re is a clear ten­den­cy for Inter­net plat­forms such as You­Tube to be clas­si­fied as tele­vi­si­on-like. Howe­ver, a final cla­ri­fi­ca­ti­on of the issue remains to be seen.

Sur­rep­ti­tious adver­ti­sing and pro­duct pla­ce­ment on the Inter­net

The term sur­rep­ti­tious adver­ti­sing is defi­ned in the law (§ 2 No. 8 Inter­sta­te Broad­cas­ting Trea­ty). Accor­din­gly, this is the

Men­ti­on or repre­sen­ta­ti­on of goods, ser­vices, names, brands or acti­vi­ties of a pro­du­cer of goods or a pro­vi­der of ser­vices in broad­casts if it is inten­tio­nal­ly pro­vi­ded by the broad­cas­ter for adver­ti­sing pur­po­ses and, in the absence of labe­l­ing, may mis­lead the gene­ral public as to the actu­al pur­po­se of such men­ti­on or repre­sen­ta­ti­on. In par­ti­cu­lar, a men­ti­on or repre­sen­ta­ti­on is dee­med to be inten­ded for adver­ti­sing pur­po­ses if it is made in return for pay­ment or simi­lar con­side­ra­ti­on.

Pro­duct pla­ce­ment on the Inter­net is defi­ned simi­lar­ly in accordance with Sec­tion 2 No. 11 RStV, with the dif­fe­rence that the men­ti­on or repre­sen­ta­ti­on is spe­ci­fi­cal­ly iden­ti­fied here (which is pre­cis­e­ly not the case with sur­rep­ti­tious adver­ti­sing). Pro­vi­ding the goods/services free of char­ge is also pro­duct pla­ce­ment if the item is of signi­fi­cant value. Accor­ding to the Adver­ti­sing Gui­de­lines for Tele­vi­si­on, an item is gene­ral­ly of signi­fi­cant value if it exceeds € 1,000.00.

If we now assu­me that You­Tube vide­os fall under the clas­si­fi­ca­ti­on of the Inter­sta­te Broad­cas­ting Trea­ty, rest­ric­tions regar­ding adver­ti­sing pur­su­ant to Sec­tion 7 RStV also app­ly to them. This means that sur­rep­ti­tious adver­ti­sing is always inad­mis­si­ble the­re. Pro­duct pla­ce­ments are only pro­hi­bi­ted in prin­ci­ple, but the­re are also defi­ned excep­ti­ons to this prin­ci­ple, name­ly if the­re is pro­per labe­l­ing.

Children’s, advice and con­su­mer pro­grams: no pro­duct pla­ce­ment allo­wed

Pro­grams for child­ren are expli­cit­ly excluded from the excep­ti­ons. Pro­duct pla­ce­ments are always pro­hi­bi­ted here as well. The same appli­es to advice and con­su­mer pro­grams. This can be explai­ned by the fact that man­da­to­ry labe­l­ing of child­ren does not neces­s­a­ri­ly help to crea­te the neces­sa­ry distance. They over­look the mar­kings more easi­ly or can­not clas­si­fy them. The term child is not defi­ned in the Inter­sta­te Broad­cas­ting Trea­ty and dif­fe­rent regu­la­ti­ons can be found in other laws. In prin­ci­ple, an age of less than 15 years seems appro­pria­te here. Often, a video or chan­nel can­not be pre­cis­e­ly assi­gned to a spe­ci­fic age group. Howe­ver, in the case of the popu­lar chan­nels deal­ing with make-up and life­style, it can pro­ba­b­ly be assu­med that many view­ers fall into the children’s age group. This means that pro­duct pla­ce­ments in such vide­os would never be per­mis­si­ble. The same appli­es to vide­os in which pro­ducts are pre­sen­ted and tes­ted. They can pro­ba­b­ly be clas­si­fied as advice and con­su­mer pro­grams.

The cor­rect labe­l­ing of pro­duct pla­ce­ment

If pro­duct pla­ce­ment is to be per­mit­ted on the Inter­net, howe­ver, the ques­ti­on remains as to what the neces­sa­ry labe­l­ing should look like. The adver­ti­sing gui­de­lines of the sta­te media aut­ho­ri­ties for tele­vi­si­on pro­vi­de a hint. The­re it is sta­ted that a pro­duct pla­ce­ment is then appro­pria­te­ly mark­ed,

if it con­ta­ins the abbre­via­ti­on “P” as a cross-broad­cast logo for pro­duct pla­ce­ments for at least 3 seconds at the begin­ning and end of a pro­gram and when it con­ti­nues after a com­mer­cial break.”

This logo should be accom­pa­nied by a sup­ple­men­ta­ry note such as.

Sup­port­ed by pro­duct pla­ce­ments

to add. If the­se requi­re­ments are met, it is a suf­fi­ci­ent labe­l­ing of the pro­duct pla­ce­ment.


The prin­ci­ple of sepa­ra­ti­on of edi­to­ri­al con­tent and adver­ti­sing also appli­es to Inter­net vide­os. Sur­rep­ti­tious adver­ti­sing is always inad­mis­si­ble. Pro­duct pla­ce­ment on the Inter­net may be per­mis­si­ble. Assum­ing the appli­ca­bi­li­ty of the Inter­sta­te Broad­cas­ting Trea­ty, pro­duct pla­ce­ments in children’s pro­grams as well as advice and con­su­mer pro­grams are never per­mis­si­ble. Per­mit­ted pro­duct pla­ce­ments must be pro­per­ly labe­led (“P”).

Of cour­se, the pro­du­cer of a video remains allo­wed to test, rate or give away pro­ducts. If he does this on his own initia­ti­ve and wit­hout con­side­ra­ti­on, it is always per­mis­si­ble edi­to­ri­al con­tent. Howe­ver, he may not be pro­vi­ded with the pro­ducts abo­ve the limit (at least € 1,000) free of char­ge or even recei­ve money for them.

The con­tents of this artic­le were published as a guest artic­le in the print edi­ti­on of HORIZONT.

If you have any ques­ti­ons or need advice regar­ding adver­ti­sing and pro­duct pla­ce­ment in Inter­net vide­os, plea­se call us at 0221–4201074, send us an e‑mail at info@rehkatsch.de or make an appoint­ment with our office.

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