The final “Runes of Magic” decision of the German Federal Court of Justice (“BGH”) regarding an advertisement for in-game items (allegedly) targeted at children has caused enormous insecurity (we have discussed the case in some detail in our blog). The German language has different words and grammatical constructions for “formal” and “informal” address, the latter being commonly used for children, but also for family, friends, and in other informal settings. This peculiarity can make it hard to draw a line between advertisements specifically targeted at children, and legitimate and rather common “informal” promotional approaches. Is it really not allowed to use informal language in advertisements? Even the BGH decision contained contradictory passages on these issues.
The Regional Court of Berlin (“LG Berlin”) now had to decide on a quite similar issue. It seized the opportunity to make one thing crystal clear: Yes, you can. “Get it now” and “Shop in the pet store” are not forbidden advertising targeted at children even though they use the informal address. The Berlin judges also scrutinize the BGH decision in an insightful manner.
Once more, the plaintiff was the consumer watchdog group Verbraucherzentrale Bundesverband (“vzbv”). The operator of an MMO game had used, among others, the following expressions to promote additional items (the original German wording can be found here):
- Shop in the pet store
- New exclusive mount: Armoured bloodwing – Get it now
- This monstrous, carnivorous bat is the perfect companion for a detour to the next battle field, to spread death and destruction.
The consumer protection group considered these phrases illegal direct exhortations to children to buy the relevant items under No. 28 of the appendix (“Blacklist”) to § 3 para. 3 of the German Act against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb; “UWG”), in particular due to the use of the informal “you” (“euch”).
The court rejects this argumentation in a clear and well-founded manner (LG Berlin, decision of 21 April 2015, docket no. 16 O 648/13).
First of all, the court clarifies that the term “child” in this context has to be interpreted in accordance with European law and not just from a German law perspective, as the Blacklist is based on an EU directive. At least in theory, “children” could be interpreted as a reference to all minors. This interpretation is however rejected by the court, which concludes that in accordance with European law as well as German national law, the term “child” only refers to minors under the age of 14.
No Child-Specific Product
This target group is not directly addressed by the advertisement. Neither the advertised product nor the context of the advertisement or the actual language used were sufficient, according to the court, to establish such direct targeting:
The product is a complex and demanding game (though the judges’ further description of the game as “partially also cruel and bloodthirsty” probably takes things a bit too far). Whether children might be attracted due to curiosity or attraction to forbidden fruits is irrelevant according to the court. It observes that any other interpretation would lead to the absurd result that almost every exhortation to make a specific purchase would have to be banned. This was obviously not the purpose of the relevant directive and the applicable statutes.
Informal Address Allowed
Furthermore, the judges do not consider the use of the informal address as a direct exhortation to children. They note that the informal address is nowadays also common when addressing adults.
They state that this does not contradict the formula employed by the BGH in its “Runes of Magic” decision, which stated that a direct exhortation to children can be presumed when an advertisement uses the second person plural and “terms mostly typical for children, including common anglicisms.”
On the one hand, the court distinguishes the case in fact, stating that the game at issue was targeted at an even older audience than the one contemplated in the BGH decision, and expressions like “monstrous, carnivorous bat” were not typical children’s speech.
On the other hand, it states that the BGH decision lacks a clear definition of “terms typical for children, including common anglicisms” and how to apply that test in practice. When in doubt, advertisements could not be banned.
Comment and Outlook
We agree with the decision. Advertisements are not targeted at children simply because they use the informal address – this is also common practice in advertising targeted at adults, especially in areas such as online services and online games, where informal communication styles have been particularly prevalent for a long time.
The court fully acknowledges the criticism of the “Runes of Magic” decision by legal literature. In a mini (bench-to-)benchslap, it literally states that the advertisement in the present case had (even) less terms typical for children (emphasis added) than in the case decided by the federal judges. Clearly, the Berlin court does not particularly appreciate the “Runes of Magic” decision. Online advertisers, in return, will particularly appreciate the last sentence of the Berlin decision: In parts due to the lack of clarity of the BGH ruling, advertisements have to be permitted in cases of doubt.
The decision is not yet final – the plaintiff has filed an appeal.