Hidden advertising and native advertising: clear disclosure duties

Annex Z 11 UWG belongs to the commercial practices that are always regarded as unfair. It does not describe every advertisement in a medium, but a specific concealment: editorial content is used for sales promotion, the sales promotion is paid for by the business and the commercial purpose is not clearly apparent from the content or clearly recognisable images and sounds.

“Editorial” is not limited to traditional newspapers. What matters is the impression created by the publication. An item may appear on a news site, specialist portal, magazine, podcast, video format or thematic platform and still look like independent information. The more strongly the setting suggests journalistic selection and neutrality, the more carefully the commercial nature must be made visible.

Payment does not have to appear as a conventional invoice. Fees, flat campaign budgets, free production services or an agreed commercial consideration may be relevant. Whether a media statute or another special rule also applies is a separate question. The competition-law core remains the same: paid sales promotion must not be hidden as independent information.

First clarify the economic relationship. Who pays or provides what, to whom and on what basis? Is payment linked directly to the contribution or to a campaign with several publications? A non-cash benefit should also be recorded where it enables or influences publication.

Second review the content. Does it contain a recommendation, product presentation, price benefit, link or another statement intended to promote sales of a product or service? Editorial form, neutral wording or editorial involvement do not change the fact that the content may be sales promotion.

Third assess the setting. Does the item appear next to independent news, specialist articles or tests? Does the section, layout or headline signal editorial independence? Disclosure matters most where the setting creates a different expectation.

Fourth assess visibility from the audience’s perspective. A note in a hard-to-find subpage, a general media kit or the end of a long text is not necessarily enough. The disclosure must be perceivable in the specific contribution before the promotional information takes effect.

Disclosure does not necessarily require one specific typeface or one single position. It must be clear, understandable and connected to the contribution. Terms such as “advertisement”, “paid content” or an equivalent wording can identify the commercial purpose. The chosen form must not be neutralised by restrained placement or design.

Disclosure should appear before or alongside the first commercial impression. For an article this will usually concern the visible opening area, headline, teaser or introduction. For video and audio, both image and sound must be considered. A notice that appears only after the substantive contribution may come too late.

Headline and editorial presentation are part of the review. A factual headline that presents the article as an independent test may weaken the disclosure. Conversely, a visible label does not cure statements that still suggest independent selection or review. The advertising claims self-check helps organise the claim, audience, evidence and qualifications together.

A clearly recognisable banner normally remains visible as advertising. Native advertising uses the form and setting of editorial content. That design is not prohibited. The risk arises where the audience fails to recognise the commercial purpose precisely because of the editorial form. The review must therefore ask not only whether advertising exists, but how it is perceived.

An influencer contribution can raise a similar concealment question, but is not automatically native advertising. In a paid editorial article, the relationship between business, medium and editorial presentation carries more weight. Paid placement in online search results follows the separate rule in Annex Z 11a UWG and should not be conflated with this topic.

An independent test or editorial recommendation can also become problematic where the supposed independence is paid for or controlled by contractual requirements. Anyone describing content as a test should document selection, criteria, data and consideration. The word “editorial” cannot conceal missing disclosure.

The business should first define its own assignment clearly. The contract should record which content is financed, which statements are permitted, which disclosure is used and who controls publication. An agency may organise the process, but it does not automatically remove the business’s responsibility for unclear instructions.

The medium should also keep the commercial classification of its publication traceable. Editorial design, disclosure, advertising department and approval should not interact in a way that makes the payment relationship disappear in the finished contribution. The closer content comes to the editorial core, the more important an organisational separation becomes.

Creator, editorial team, agency and business may each contribute to publication. In a dispute, the review therefore covers not only the last visible version but also briefing, emails, approvals and requested changes. A responsibility clause helps internal organisation, but it does not replace an assessment of the actual overall impression.

Before publication, create a compact approval file. It should contain the assignment and consideration, briefing, draft, disclosure, final approval, publication time and exact position in the medium. For dynamic pages or social formats, preserve an unchanged version of what was visible.

Keep originals separate from later explanations. Store invoices, performance records, emails and requested changes with dates. For audio and video, include the audio track, spoken notice and visible wording. For print or PDF, preserve the specific issue and its distribution.

This record is more than administration. It shows what information was actually accessible and whether disclosure could be perceived before the promotional statement. It also helps limit a challenge to the specific contribution instead of discussing “advertising” in the abstract.

First preserve the complete letter with service date, attachments and every contribution named. A change may be necessary, but it should follow preservation of the evidence. Otherwise it may no longer be possible to establish how the contribution looked before the response.

Then identify the precise complaint: payment, editorial presentation, missing disclosure, individual claims or distribution. Annex Z 11 UWG is focused on the described combination. A general response about the entire media presence can miss the actual point in dispute.

The overview of a UWG cease and desist letter from a competitor or association provides the general framework. Claim, requested undertaking, removal and evidence must be assessed separately. Where publication continues, the topic on injunctions and interim relief may also become relevant.

Before approval, answer five questions in writing: Who pays or provides what? What sales purpose does the content pursue? In which editorial setting will it appear? Where and how will the commercial purpose be disclosed? Which person reviews the final version before publication?

Also assess whether headline, teaser, image, sound, placement and links support the commercial purpose or reinforce the appearance of independent information. Repeated formats need a reusable approval logic, but not an automatic release without review of the specific issue.

If contract, briefing and final presentation do not produce the same answers, the content should not simply go live. A short legal review before the first use can be less costly than preserving many versions and responding to multiple challenges later.