OLG Cologne: Advertising for prescription drugs may be permitted to correct false reports

If the manufacturer of a prescription-only pharmaceutical product is exposed to misrepresentations in social media, the company may, as an exception, defend itself by means of advertising towards consumers as long as the relationship to the current discussion becomes clear. This was decided by the Higher Regional Court of Cologne in interim-relief proceedings (Case No. 6 U 92/17; judgement of 12 January 2018).

In the underlying case, Hogan Lovells client MSD Animal Health was the victim of avalanche slander on the Internet. The publications contained allegations about the prescription flea and tick protection product Bravecto®, which had no basis in fact and unsettled animal owners and veterinarians. The company responded to these rumors and shared postings on Facebook saying "All the facts about flea and tick protection products"; on a linked site, the company countered the false allegations and clarified consumers and veterinarians. As a result, a competitor had sued MSD Animal Health to cease and desist pursuant to section 10 para. 1 of the German Act on the Advertising of Medical Products (Heilmittelwerbegesetz).

The court followed Hogan Lovells' argumentation that an overall balance had to be struck between the advertiser's freedom to exercise his profession and freedom of expression and the advertising ban. In case of massive misrepresentations on the Internet, this balance favours the advertising company, insofar as reference is made to the ongoing discussion. 

Dr. Tanja Eisenblätter, Head of Litigation at Hogan Lovells in Europe, said: "With this ruling, the Higher Regional Court of Cologne has made legal history. We are glad that our clients are no longer helplessly exposed to misrepresentations on the Internet, but are able to defend themselves. It was of immense importance for our client MSD Animal Health to counter the rumours on the Internet. We expect that other companies will also benefit from this ruling. Because it happens again and again that facts are misrepresented in the social media. We have pointed the way for all companies affected in the future."

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