The tension between advertising and data protection and competition law presents companies, organizations and institutions that want to draw attention to themselves through advertising with not inconsiderable challenges under competition law and data protection law. Before implementing an advertising campaign and collecting, purchasing or transmitting customer data, the legal requirements must be carefully examined and implemented in compliance with the law.
Advertising measures must comply with data protection and copyright requirements, some of which are very strict and which, in the event of violations, are associated with sometimes high fines and other sanctions imposed by data protection supervisory authorities, government agencies or by cease-and-desist letters (e.g., from lawyers). The European General Data Protection Regulation (GDPR), the German Federal Data Protection Act (BDSG), the Unfair Competition Act (UWG), consumer protection rights, trademark rights and copyrights play a central role as legal requirements.
When selecting the advertising strategy, the specific requirements of the group of people to be addressed (entrepreneurs or consumers) and the selection of the means of communication or the distribution channel of the advertising measures must be taken into account (e.g., e-mail, telephone, mail, newsletter, radio, television, apps, advertising on the Internet or in social media).
A selection of required measures includes the selection and evaluation of data sources, compliance with legal and technical requirements when processing customer data using IT applications with complex algorithms for evaluating and analyzing customer data (Big Data), specifications when tracking customer behavior on websites and in social media, and compliance with requirements when creating profiles and with anonymization and pseudonymization.
The successful planning and implementation of advertising measures require comprehensive advice and ongoing support from specialized lawyers in order to avoid fines, the assertion of claims for damages, image damage, the loss of orders to competitors, and to minimize overall liability risks.
Our firm advises on all areas of advertising, including the following: