Legal Classification of Comparative Advertising for Aesthetic Surgical Procedures on Social Media
The assessment of comparative advertising under competition law, particularly in the context of aesthetic surgical procedures on platforms like Instagram, poses a complex challenge. This is demonstrated by the decision of the Higher Regional Court (OLG) of Frankfurt am Main on November 10, 2023 (Ref.: 6 U 40/25), which classified the use of comparative advertising in an Instagram story for a medically unnecessary surgical procedure as an unfair business practice.
Scope and Limits of Comparative Advertising
Requirements and Permissibility under the Unfair Competition Law (UWG)
Comparative advertising is generally permissible under the provisions of § 6 UWG, provided that a factual and accurate comparison of essential, relevant, verifiable, and typical features or prices of goods or services is made. Nevertheless, this form of advertising must not contain elements that distort competition or mislead, nor should it aim to denigrate or defame competitors.
Specifics in the Medical-Cosmetic Field
In the realm of medically unnecessary, aesthetic surgeries, there are specific considerations: In the sensitive area of cosmetic surgery, which involves health-related services for non-medically necessary procedures, there are heightened requirements for transparency and objectivity in advertising statements. The target audience regularly consists of laypersons who, given the promised aesthetic benefits, are potentially more susceptible to advertising promises. The threshold for unfair advertising is thus reached more quickly, even with minor transgressions.
Decision of the OLG Frankfurt am Main: Facts and Legal Evaluation
Reason for Judicial Review
In the case at hand, a provider of aesthetic services advertised a surgical procedure via Instagram story, specifically referencing a competitor by name. The representation concerned a non-medically justified procedure, where one’s own services were depicted as a superior alternative, and the competitor was systematically presented as less suitable.
Court’s Core Argumentation
The OLG Frankfurt am Main found a violation of competition law in this setup. The decisive factor was the targeted emphasis on one’s own services while simultaneously deprecating the competitor using comparative evaluation standards that were neither neutral nor objectively understandable. The public platform Instagram, according to the court, exacerbates the risk that such messages have widespread effect and can be easily misunderstood.
The OLG emphasized the increased need for protection of the addressed consumers, who should expect a higher degree of information and seriousness, especially concerning surgical procedures with potential risks. Advertising that aims solely at attracting attention and gaining competitive advantages through critical references to competitors within a social network can easily cross the threshold to unfairness in cases like this.
Distinguishing Permissible from Unfair Advertising: Key Factors
Information Function and Transparency Requirement
The legal requirements demand that comparative advertising should be oriented towards maintaining an objective information function and remain comprehensible to consumers. Manipulative, biased comparisons that unreasonably demean competitors or generally portray their methods as disadvantageous regularly violate the requirement of fairness.
Relevance of Platform and Reach
When choosing the medium – here, using an Instagram story – the rapid, viral dissemination and the specific addressing of young, possibly impressionable users must be considered. The exploitative impact of social networks to deliberately denigrate competitors can be seen as particularly intense and thus legally problematic.
Implications of the Decision for Practice and Significance for Enterprises
Immediate Impact on Advertising Practices in the Healthcare Market
The decision of the OLG Frankfurt makes clear that in advertising for non-medically indicated surgical procedures, even cross-border references to a competitor combined with demeaning presentation can quickly cross the threshold of unfairness. Advertising companies are therefore required to strictly observe the requirements for comparative information dissemination and the specific characteristics of social media.
Significance for Corporate Communication Strategies
Particularly companies in the field of aesthetic-surgical services are required to adhere to the strict standards of transparency, objectivity, and neutrality in advertising messages. The decision demonstrates that the leeway, especially in personal advertising explicitly related to other providers, is narrowly limited. Derogatory comparisons can entail significant legal consequences and should therefore be carefully avoided in the conceptualization and execution of marketing activities.
Conclusion
The current jurisprudence underscores the clear boundary between permissible comparative advertising and impermissible deprecation of competitors, especially in sensitive health markets and on high-reach digital platforms. Companies operating in this environment would do well to closely follow developments in the case law and align their communication strategy with legal compliance.
For further questions on distinguishing between permissible and impermissible comparative advertising and the implications of current jurisprudence, colleagues at MTR Legal are available for individual Legal Advice in Competition Law support.
