HIGH COURT DECISION ON WEB SITES FOR GERMAN DOCTORS

The Bundesverfassungsgericht has overturned lower court decisions that found that a web site for a private health clinic should be banned because, among other things, its commercial-sounding slogans trivialized the medical profession (according to existing law) and because it encouraged patients to engage in self-medication. Read an account of the decision at RP Online, here, and the decision itself here. The owner of the clinic argued that the decision interefered with established rights to pursue a profession (Berufsausübungsfreiheit).

As far as I can tell from the decision, the lower courts were concerned by one of the clinic's web slogans, "What we can do for you depends on what you've got," which they considered too close to a guarantee that the clinic could actually heal patients. A relevant category of German law (about which I know nothing) is the "marktschreierische Werbung," which seems to mean something like "exaggerated or false promises in advertising," and which are prohibited by law. It seems that the concern for the lower courts was safeguarding a non-commercial approach to medicine and that this category of advertising is particularly damaging in the context of medicine. The Bundesverfassungsgericht didn't think that this slogan was an exaggerated or false promise, however:

No reasonable reader would interpret the phrase to mean a guarantee of successful treatment. (Kein verständiger Leser wird die Formulierung so deuten, dass für die Behandlung eine Erfolgsgarantie abgegeben wird.)

The case is interesting, I think, for several reasons. In general German law is more paternalistic (one of my correspondents used the term "protectionist") in commercial relations, so this case is a good one if you want to get some of the contours of the German approach here. But it is also significant that in this case the highest constitutional court seems to be safeguarding a more tolerant approach to the use of the internet, in contrast to the approach of the lower courts.

Secondly, the issue of the relationship between the traditional professions (medicine and law, especially) and the modern economy is a fascinating one because all sorts of things come together here: the desire of professional organizations to safeguard their image of neutral competence (and, with it, restrict access to the profession and benefit current members), the need for the public to be protected against unscrupulous experts, and market pressures toward innovative uses of new technologies such as the internet.

Finally, this case in particular is pretty interesting because it raises a question about anonymity. The names of the parties in the case are withheld (except for the first letter of the last name; you also know that the doctor who defended the site is female), but one newspaper account gave the location of the clinic as "near Ulm." It's not that hard to find a web site that fits the following characteristics: it's for a "Gefaessklinik" near Ulm, and one of the main doctors is female whose name starts with the letter "B," and the site has a list of ten things you can do to keep your circulation healthy (and reading the descriptions in the opinion will give you additional clues). I'm not saying that I've found the newly revamped site, but it's not hard to find one that looks suspiciously like the one mentioned in the case. I don't know enough about German journalistic practice as it intersects legal practice to know why the papers don't name the clinic. Is it a matter of law or custom? Even though I think that it's ultimately hopeless to try to keep these things secret, especially if the subject is web advertising, I kind of like the idea of restraint and won't link to the site that I've found. You can find it if you spend a few minutes searching.

For another question concerning German law and internet advertising, see my post here and papascott's post here.