If the legal situation has really been badly botched and become convoluted, you can usually be pretty sure that the German legislature has implemented an EU guideline. Take, for example, the issue of product placement:
Product placement is prohibited, but there are so many exceptions to this rule that in most cases it is permissible because of “exceptional” circumstances. However, all of these exceptions have one thing in common: The product placement cannot be really bad – even though the statute formulates this much more elegantly. Of course, when it comes to movies, this is a completely different story because product placement is always permitted there. But it becomes tricky if a movie is then broadcast on television. It is then permitted if the product placement is pointed out. However, sometimes you don’t have to point this out, and in doing so it must be pointed out that it has not been pointed out (no joke!).
Well, we are representing a music video broadcaster. As such, sometimes the shows on this channel portray a rapper posing on a Ferrari, or scantily-clad women conspicuously holding champagne bottles on screen. In short, the client broadcasts “light entertainment programs that are not produced by the broadcasters themselves”, to put it in the vernacular of the Interstate Broadcasting Treaty (Rundfunkstaatsvertrag). And such “light entertainment programs” are among the exceptions that permit product placement (sec. 15 no. 1, Interstate Broadcasting Agreement). Our client therefore points out that these music videos are a matter of third-party production in which product placement may occur. And this is basically enough to satisfy the legal requirements.
It was not so easy for German TV-channel SAT1, who lost a case in the Higher Administrative Court (OVG) of Koblenz a few weeks ago (Koblenz Higher Administrative Court, ruling from 08/22/2013, 2 A 10002/13.OVG). Before and after the live broadcast of a soccer game, SAT1 had shown a “men’s camp” where four previously selected SAT1 viewers watched the soccer game and had a cookout. The logo of the “Hasseröder” brand of beer was often conspicuously seen on the four participants’ t-shirts, on their beer glasses, beer bottles, etc. The brand of beer was even mentioned by name (“Let’s have ourselves a few more of these nice, grilled sausages and drink a few Hasseröders fresh from the tap.”).
SAT1 had shown eight-second-long notices during the live broadcast indicating that it was “supported by product placement”. Well, at least that’s something. However, this was not enough to satisfy the requirements stipulated by the Interstate Broadcasting Agreement. Because, according to sec. 7 para. 7 p.2 no. 3 of the Interstate Broadcasting Agreement, the product placed may not be emphasized too strongly. Determining if this is the case depends upon what is editorially necessary or what is justifiable to present something realistically.
The reality of an evening of watching soccer could really be such that a bottle of beer is seen on a table. Maybe even an entire case. Or maybe even two cases, if people are really thirsty. But it must be conceded to the court that the sheer intensity used to present “Hasseröder” during the SAT1 program no longer approximates the reality of a normal night of watching sports.
Those soccer fans who fill their entire homes with Hasseröder fan items, who put on Hasseröder t-shirts to watch soccer and drink beer from Hasseröder coolers must absolutely be outside the norm. And if any such fans even exist, they themselves would probably admit that they are one beer short of a six-pack.
In short: Product placement is strictly prohibited, yet this prohibition is so full of loopholes, it resembles Swiss cheese. As such, the line is usually only crossed if the product placement is not pointed out or if the broadcasters exaggerate it, presenting products with such intensity that there can be no more mention of it resembling reality.
