Advertising & Marketing 2023 Comparisons

Denmark, along with most other European countries, has its own laws regarding advertising and marketing. The first Danish laws on the subject date back to 1894, and the most recent law is the so-called Marketing Act of 2017 (L 2017-05-03 nr 426 with amendments).

Denmark, as a member of the European Union, also receives a large part of its regulation from the EU, including regulation on marketing and advertising. The primary EU regulation is EU Directive 2005/29 regarding unfair commercial practices. This EU directive and the amendments hereto have caused changes to the national laws on marketing and advertising and will continue to do so.

The two above-mentioned regulations do not have an identical field of application. The Danish law on marketing is primarily aimed towards regulating marketing defined as the communication with the market of a business or an organisation, whereas EU Directive 2005/29 more generally aims to regulate unfair practices as a whole. This includes practices that do not constitute marketing as defined above, but concern the healthy competition between actors on the market. In Denmark, such practices are instead regulated in the so-called Danish Competition Act (lov nr. 384/1997 with amendments).

There exist both administrative recourse options as well as the option of going to court in cases of marketing disputes in Denmark.

In chapter seven of the Danish Marketing Act, there are provisions that create the Institution of a so-called Consumer Ombudsman (forbrugerombudsmand). The Consumer Ombudsman has the authority to carry out the following actions:

• to oversee that the rules in the national marketing law are complied with especially when marketing towards consumers;
• to negotiate with stakeholders to ensure that the law is complied with;
• to create guidelines regarding certain marketing methods and practices;
• to give non-binding answers to questions regarding marketing practices;
• to initiate prosecutory action against actors who are deemed to have acted in conflict with the Danish Marketing Law. This includes issuing administrative fines (bødeforlæg) to the offender;
• to award damages;
• to issue temporary injunctions; and
• to carry out controls and check-ups.

It must be made clear that the Consumer Ombudsman may only put forth opinions, and that these opinions are not legally binding per se. It must, however, also be noted that the courts will usually refer heavily to the opinions of the Consumer Ombudsman, and acting contrary to the issued opinions of the Consumer Ombudsman will usually be in conflict with the general marketing standard which states that one must act in accordance with “good practice” when marketing a product or service on the market.

As stated above, marketing cases may also be tried by the city court with competence or the Danish Maritime and Commercial Court.

The Danish Marketing Act applies to all entities who offer products or services on the market regardless of industry. This primarily includes private, commercial companies and governmental organisation that can be said to offer a product or service on a commercial basis.

A trader on the Danish market must not solely consider their “advertising” per se when considering whether they are acting in accordance with regulation on marketing and advertising. The trader must instead consider their public image in its entirety as part of their commercial communication that must comply with national and EU regulations. This becomes clear when going over the definitions of three central terms in Danish and European marketing law: advertising, commercial practice and commercial communication.

Definition of Advertising

There exists no definitive definition of what constitutes advertising in Denmark. The Danish Marketing Act of 2017 is, at least partially, based upon the definition of “advertising” in EU Directive 2006/114 concerning misleading and comparative advertising. Within this directive “advertising” is defined as “the making of a representation in any form in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations”.

Definition of Commercial Practice

The Danish Marketing Act as well as the EU Directive 2005/29 do not only concern “advertising" per se but concern commercial practices in a broader sense. “Commercial practice" is, oddly enough, not defined by any EU source of law though it falls upon the CJEU to define the term if a case regarding the uncertainty of its meaning were ever submitted to the court. As for now, the term is, however, defined in Section 2(4), of the Danish Marketing Act. The term is defined as follows: “an act, omission, behaviour or presentation, commercial communication, including advertising or marketing, carried out by a commercial actor with direct relation to promotion, sales or supply of a product to consumers”.

Definition of Commercial Communication

Another important term is “commercial communication”, which is widely used in EU-regulation on advertising and marketing. This term is defined in EU Directive 2000/31 concerning e-commerce. In article 2(f), “Commercial communication” is defined as follows: “any form of communication designed to promote, directly or indirectly, the goods, services or image of a company, organisation or person pursuing a commercial, industrial or craft activity or Article 3 exercising a regulated profession. The following do not in themselves constitute commercial communications:[…]”.

There is no requirement under the Danish Marketing Act for advertisers to obtain a license or to have a marketing campaign pre-approved.

Advertisers can obtain an advance indication from the Consumer Ombudsman regarding the legality of contemplated marketing arrangements. The Consumer Ombudsman will give a statement regarding his view of the lawfulness of contemplated marketing arrangements, unless an opinion would be subject to unusual doubt or if other special circumstances exist (such as a request for an opinion on an entire business concept). An advance indication does not amount to an actual opinion of the lawfulness of the arrangement concerned. The Danish Consumer Ombudsman can decide that a submitted marketing arrangement 1) does not conflict with the Danish Marketing Act and/or other relevant legislation; 2) is clearly in conflict with the law; or 3) the legality of the marketing arrangement is questionable.

Special rules apply to the advertising of medicine under part II of the Danish Medicines Act (Act 2023-03-15 no. 339). A medicinal product may only be marketed or dispensed in Denmark when a marketing authorisation has been granted either by the Danish Medicines Agency pursuant to the Danish Medicines Act or by the European Commission pursuant to the provisions of Community law laying down Community procedures for authorisation and “pharmacovigilance” of medicinal products for human and veterinary use.

Using Someone Else’s Intellectual Property in Advertising

All laws that grant an intellectual property right share that they, to various extents, confer upon the proprietor of the intellectual property right the exclusive right to take certain actions relating to the right. In many cases, such exclusive right will prohibit a third party from marketing a product that someone else has the intellectual property rights to.

Copyright

It is not allowed to use copyright protected work belonging to another person in marketing. This was unequivocally confirmed by the Danish Supreme Court in 2019 in a case that we are proud to have participated in. This case was specifically about using protected kitchenware in advertisements for food stuffs which were displayed in/on the protected kitchenware – this was not permitted.

Trademark

It is prohibited to use a trademark belonging to another entity without the right holder’s permission.

Design

According to Section 9(1) of the Design Law, a third party may not sell or advertise products that someone else has the Design rights to without the permission of the right holder. The same follows from article 19 of EU Regulation No 6/2002 of 12 on Community designs.

Patent

Without permission from the patent holder, one may not sell the patented product. Therefore, it is also illegal to market the product. However, if one gets permission from the patent holder to sell a patented product, the seller will also (if only implicitly) have permission to advertise the patented product.

Best marketing practice

In certain instances, marketing a copy of a product may be illegal even though the product is not protected by one of the above-mentioned IP laws and therefore has not been granted an exclusive right to the product. According to Section 3 of the Danish Marketing Act, all marketing must be in accordance with “best marketing practices”, and this means that all marketing must respect and be loyal to one’s competitors. Marketing a product that is simply a copy of a competitor’s product will often times be regarded as disloyal and therefore prohibited.

Using Someone Else’s Picture and Likeness

It is not allowed to use images or look-a-likes of neither well-known people nor ordinary people in advertising without permission.

Using Someone Else’s Name and Voice

Although there is no specific regulation, using someone else’s name and voice can be contrary to good marketing practices, especially if the name and voice contains commercial value. In 1995, a bank was forbidden from using the name of A.P. Møller (of Mærsk fame) in an advertisement. We must therefore assume that using someone else’s name in marketing material is not allowed.

There is no single primary advertising self-regulation system in Denmark.

The Consumer Ombudsman is an independent public authority that supervises compliance with Danish marketing law and has substantial influence on the interpretation of Danish marketing law.

In relation to medicine, the supervisory activities of the Danish Medicines Agency in the advertising area are supplemented by self-regulatory bodies in the industry, which monitor the lawfulness of the companies’ advertising activities in parallel with the Danish Medicines Agency.

There are five self-regulatory bodies: the Danish Board of Drug Advertising (Nævnet for Medicinsk Informationsmateriale); the Marketing Board of VIF1 (VIF’s Markedsføringsnævn); the Danish Board of Pharmacy Ethics (Apotekernes Etiske Nævn); the Danish Medical Association Ethical Council (Lægeetisk Nævn); and the Ethical Board of the Danish Association of Suppliers to the Health Industry (Helsebranchens Leverandørforenings Etiske Nævn).

Furthermore, the Radio and Television Board, (the RTB), is the independent regulatory authority in charge of supervising the implementation of the Danish broadcasting legislation. The RTB has the following tasks: 1) to issue licenses to private national and local broadcasters; 2) to monitor whether private and public broadcasters are fulfilling their legal obligations; and 3) to administer grants for non-commercial local radio and television.

Finally, the Danish Board of Advertising of Alcohol is an independent authority which decides whether advertisers and businesses comply with its guidelines. Furthermore, the board’s task is to hear and determine complaints relating to the marketing of alcoholic beverages in Denmark. Both consumers and businesses can make complaints about the advertising campaigns of other businesses.

There is also a non-profit organisation called “e-mærket” (the e mark), which established a certification scheme for Danish web shops. This initiative aimed to provide protection for both consumers and traders seeking to run online stores. The organisation “e-mærket” cannot govern advertising practices. If a conflict arises between a consumer and a web shop, the organisation can provide legal advice to both parties and try to find a solution to the conflict. However, their competence does not extend beyond that, and if a solution cannot be found, the organisation can only advise on options for complaints.

As there is no primary advertising self-regulation system and no self-regulatory advertising code in general, there is therefore no enforcement nor dispute resolution mechanism that deals with advertising.

Consumers who are resident and non-resident in Denmark have access to lodge complaints with the Consumer Ombudsman if they come across misleading marketing activities emanating from Denmark or receive unsolicited commercial communication. Lodging a complaint with the Consumer Ombudsman does not require legal standing.

The Consumer Ombudsman is, however, not able to investigate all complaints which have been lodged with him for evaluation. When deciding which consumer protection issues to look into, the Consumer Ombudsman seeks out issues whose solution will benefit the collective interests of consumers.

The consumer is not required to lodge the complaint with the Consumer Ombudsman before the consumer is able to initiate legal proceedings in the Danish courts. However, in order to bring a civil action before the Danish courts, legal standing is required.

At the normal Danish courts, consumers can lay down demands that the counterparty is liable to pay damages and remuneration under the general rules of Danish law as well as a claim of an injunction. Legal standing is required.

There are industry specific organisations to which you can file complaints. The organisations review and issue comments on whether certain marketing is illegal or not. These organisations cannot issue fines directly, but they can issue public critique or file a complaint to the Danish Consumer Ombudsman and recommend a fine.

The Danish Parliament passed an amendment to the Danish Marketing Act, which entered into force on 1 July 2023. The new provision Section 37(4) introduced harsh sanctions against violations of the Danish Marketing Act. Now gross and systematic violations of the prohibition against deceptive and aggressive advertising can be punished by imprisonment for up to four months. It is expected that prison sentences will only be relevant in extremely serious cases. Fines are now also based on the marketer’s annual revenue, which will in most cases result in higher fines.

There are a number of topics that are considered to be inappropriate and unlawful advertising in Denmark, for example:

• Discriminatory advertising, ie, advertising that discriminates on the basis of for example, ethnicity, gender, age or disability, may be in violation of Section 3 of the Danish Marketing Act, as it is considered contrary to the public interest. The Danish Gender Equality Law also applies in relation to commercials. Furthermore, according to section 9 of the Executive Order on commercials, sponsoring, etc, of programmes in radio, television and on demand audio-visual media services (nr. 801 - 21/06/2013), advertisements must not violate the respect for human dignity or include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or other belief, disability, age or sexual orientation.
• Protection of personal integrity and privacy. Utilisation of images or names of people in advertising without their consent may violate Section 3 of the Danish Marketing Act.

Generally, consumer protection is and always has been the largest motivating factor behind Danish marketing law. This has been the case nationally and has become an ever-larger part of the legislation passed through the European Union.

New technologies (such as AI), ways of communicating and online platforms have led to many different types of legal challenges being discussed in culture and politically, including marketing law. However, no laws have yet been introduced to deal with this issue on how to make it safe for the implementation of the provisions in the DSM Directive on Copyright related to harvesting data for AI purposes.

According to Danish law, an advertising claim is deceptive or misleading, when it gives the average consumer of a given product or service an incorrect understanding of said product or service, its price, its nature or the terms of its sale. Incorrect ideas as described may arise through positive statements regarding the product or service or omissions of such.

For a claim to be misleading or deceptive, the claim must reasonably be expected to cause substantial changes in the economic behaviour of the average consumer of the advertised product or service. This is understood as the use of commercial practices that noticeably limit the consumers capability to make an informed purchasing decision, and which lead the consumer to make a decision that the consumer would not have made, if they had been correctly informed about the product or service; please refer to Section 8 of the Danish Marketing Act.

Denmark has expressly implemented Annex I of EU Directive 2005/29 into the Danish Marketing Act as Annex 1. This Annex contains a list of 31 commercial practices that are always considered to not be in accordance with the rules against deceptive, misleading and/or unfair marketing.

Apart from the above-mentioned Annex, Section 5(2), of the Danish Marketing Act contains a non-exhaustive list of examples of types of claims that may be misleading. There is a definite overlap between the examples in Section 5 and Annex 1.

False and/or Incorrect Statements

False and/or incorrect statements regarding a product or service can, and often will, be misleading.

Statements of Generic Praise

Certain statements that, though they may technically be factually incorrect, are not considered misleading. This is the case with statements that generically praise a product or service such as “best service in town”. Such statements of generic praise are considered capable of misleading the consumer.

Literally Correct Yet Still Misleading

In other instances, statements that are technically and literally true may be misleading by the way the statements have been presented, either by the choice of words or how the statements are shown visually.

Statements regarding certain subject must always be understood literally, for example, price claims or praise of foodstuffs.

According to Section 13 of the Danish Marketing Act, the trader must be able to document the accuracy of factual information. It is not required that the documentation is produced prior to marketing the product, but the documentation must be available to the enforcement authority, including the courts, within a reasonable time. Consumer surveys are an example of evidence that can be used in such a case. Section 13 does not apply to generic claims such as “best service in town”.

Regarding product demonstrations in advertising, there are several rules in Danish marketing law that the trader must take into account. Some examples include:

• The prohibition against misleading information about the essential characteristics of the product; please refer to Section 5(2)(2) of the Danish Marketing Act.
• The prohibition against misleading advertising by omitting or concealing essential information or presenting information in an unclear manner; please see Section 6 of the Danish Marketing Act. This may, for example, be information about the product itself, including the nature, scope or price of the product.

The Danish Marketing Act also states that marketing must not be misleading or contain untruthful information that may influence customers’ buying behaviour. For example, emphasising certain pieces of information about the product or service so that the product or service appears more positive overall, if this is not representative of the product; please refer to Section 5 of the Danish Marketing Act.

It must be clear when you market your products or services that it is advertising; please see Section 6(4) of the Danish Marketing Act. This must be particularly clear if your advertising is aimed at children and young people. So-called hidden advertising is therefore not permitted. 

Thus, the fact that a statement is advertisement must either be directly detectable from the manner in which the statement is presented or must be clearly marked as advertising, such as when influencers make statements on their personal profiles on SoMe.

There is no legislation that explicitly outlaws the use of negative stereotypes in commercial communications or that sets standards for representation. Section 3 of the Danish Marketing Law stipulates that marketing must be done in accordance with good marketing practices. This catch-all paragraph can be used by the courts or the Consumer Ombudsman to outlaw specific instances of discriminatory commercial communication. For example, the Consumer Ombudsman has stated that it was not in accordance with best practices to show a family of immigrants in an odd or stereotypical manner. Similarly, the use of racial slurs is not in accordance with this general rule, though it is not explicitly outlawed in the Danish Marketing Act.

In Denmark, greenwashing is not legal. There are rules prohibiting greenwashing in the Danish Marketing Act. This applies, for example, to the prohibition of misleading advertisement in Section 5 of the law. You must be able to prove the accuracy of information about facts. If a manufacturer claims that a product is better for the environment or even environmentally friendly, the manufacturer must be able to prove it.       

The test is a life-cycle test.

It is not allowed to employ Dark Patterns in commercial communications. In 2022, the Danish High Court (Vestre Landsret) ruled that it was against Sections 5 and 6 of the Danish Marketing Act for a web shop to not adequately inform the user that when purchasing a product, they also signed up for a monthly subscription fee. According to Section 5, marketing may not contain incorrect information about a product or through the presentation of the product, give the average consumer an incorrect understanding of the product even though all the presented information is technically correct. Section 6 of the Danish Marketing Act states that commercial communications may not mislead through omission or by presenting information in a hidden or unclear fashion.

According to Section 3(2), of the Danish Marketing Act, commercial communications aimed at children, or communications that children are particularly vulnerable to, must take their natural credulity, lack of life experience and lack of critical sense in mind.

The standard for deciding whether a commercial practice may mislead the audience, is whether their economic behaviour has been altered by the commercial practice. Section 8(2), states that in instances where an advertiser can reasonably identify that their commercial practice may particularly influence the economic behaviour of, inter alia, children, then this standard must be applied to children (or other identifiable groups).

There are primarily two pieces of Danish regulation that concern identification of sponsored and branded content. Initially, Section 6(4) of the Danish Marketing Act forbids so-called hidden marketing in a trader’s commercial practice. This means that if content is sponsored – no matter the type of content or its presentation – then it must be conveyed that it was sponsored. Secondly, sponsored and branded TV and radio programmes are regulated in the Danish law of radio and television [LBKG 2020-09-04 nr 1350 as amended]. This law only applies to TV and radio programmes (and on-demand options for TV and radio) as such.

Sponsored Content According to the Danish Marketing Act

Sponsored content in a broader sense is subject to regulation outlawing hidden marketing; please refer to Section 6(4), of the Danish Marketing Act. This rule simply states that a trader must make their intentions clear in their commercial practices including marketing – this means that it must be made clear when something is an advertisement.

Of note is that this rule applies to online influencers; if an influencer has been paid to promote a product, the influencer’s post regarding the product must be clearly marked as an advertisement – or at least as sponsored in the unlikely event that the influencer does not recommend buying the product. This may also be the case in situations where a manufacturer of a product does not pay an influencer but instead simply gives them a free product to do with as they please, and the product is the primary focus in a post.

Sponsored Content According to the Danish law of Radio and Television

Sponsored and branded TV and radio programmes are regulated in the Danish law of radio and television. One must, however, be aware that the field of application of the rules on sponsoring within this law is somewhat narrower than how the term “sponsored content” may be used in everyday language. According to Section 79, which defines what it means to sponsor a programme, this law only applies to TV and radio programmes (and on-demand options for TV and radio) as such. The law, therefore, does not apply to sponsoring of magazines, newspapers, content on the internet or social media.

The general rule according to Section 80 of the Danish law of radio and television regarding sponsored programmes is that it must be obvious to the average consumer that they are sponsored. This must be marked at the beginning or the ending (or both) by including the sponsor’s name, logo or other symbol, and giving an indication of the sponsor’s product, service or a distinguishing mark thereof. Such indications may not be included within the programme itself. The contents of the sponsored content/programme may not be changed due to the programme being sponsored, and the programme may not urge the consumer of the programme to buy the sponsor’s product.

Annex 1 of the Danish Marketing Act includes specific acts which are always deemed as misleading. One of these is if a product or service is marketed as free when the consumer must pay anything other than the unavoidable costs associated with responding to the commercial practice in question, as well as collection or payment for delivery of the product. The general regulation of the Danish Marketing Act always applies. The Consumer Ombudsman has issued a number of guidelines on which claims can be misleading. Those guidelines along with case law further regulates which claims can be misleading. Even though it is not specifically mentioned in the Danish Marketing Act, false claims about a product’s origin would also be clearly misleading marketing.

According to Section 21 of the Danish Marketing Act, comparative advertisement is allowed under certain circumstances. Initially, Section 21(1), defines what constitutes comparative advertisement under Danish law: “Comparative marketing entails any advertisement that directly or indirectly refers to a competitor or a competitor’s product”. Section 21(2) lists the criteria that must all be upheld for a comparative advertisement to be lawful.

Comparative advertising is permitted when the comparison:

• is not misleading;
• concerns products that meet the same needs or serve the same purpose;
• is objective and compares one or more specific and relevant characteristics that can be documented and that are representative of these products, including the price;
• does not create confusion on the market between the advertiser and a competitor or between the advertiser’s and a competitor’s trade marks, company names, other distinctive features or products;
• does not discredit or disparage a competitor’s trade marks, company names, other distinctive features, products, activities or other matters;
• for products with a designation of origin, the products must in each individual case relate to products with the same designation;
• does not take undue advantage of the reputation attached to a competitor’s trade mark, company name or other distinctive features or of competing products’ designations of origin; and
• when the entity behind the advertisement does not manufacture products that are an imitation, or a copy of products covered by a protected trade mark or company name.

Using a Competitor’s Trade Mark

According to Section 22 of the Danish Marketing Act, a commercial entity is not allowed to use business characteristics including trade marks that they do not have the rights to, and they may not use their own business characteristics in a manner that is likely to cause confusion with the characteristics or mark of a different entity.

A notable exception exists in Section 21 regarding comparative advertisement. A commercial entity may include a competitor’s trade mark or business characteristics in their marketing as long as it is done in accordance with Section 21. This means that the use of a competitor’s trade mark or business characteristics may not create confusion on the market between the advertiser and a competitor or between the advertiser’s and a competitor’s trade marks, company names, other distinctive features, or products; may not discredit or disparage a competitor’s trade marks, company names, other distinctive features, products, activities or other matters; and may not take undue advantage of the reputation attached to a competitor’s trade mark, company name or other distinctive features, or of competing products’ designations of origin.

Using a Competitor’s Copyright

As with the use of a competitor’s trade mark, there exists an exception to the copyright holder’s exclusive rights that allows for the limited use of their protected works in loyal, relevant and factually correct comparative advertisements; please see Section 21 of the Danish Marketing Act.

Any entity with a legal interest can file a civil case against a third party, alleging violations of the Danish Marketing Act. This includes an advertiser claiming a competitor’s comparative claims are undue; please see Section 21 of the Danish Marketing Act. The advertiser can file claims for prohibition of the undue comparative claims as well as claims for remuneration and compensation for any damages.

There are no other avenues to challenge comparative claims made by a competitor.

There are no explicit rules or regulations in Danish law prohibiting the use of ambush marketing.

In 2020, the Danish Maritime and Commercial High Court, however, passed judgement in two cases regarding ambush marketing. From both cases it is clear that ambush marketing can be in conflict with the Section 3 of the Danish Marketing Act, which requires that marketing must be done in accordance with best practices. Whether this is the case will depend on the circumstances of the individual case. This was only found to be the case in one of the two judgements passed by the court in 2020. The other case is currently under appeal.

There are no rules or regulations that only apply to marketing on social media per se. The Danish Marketing Act is adequately broad in its scope and field of application as it also applies to marketing on social media. The standard for what constitutes misleading or unfair marketing is the same in the digital world as in the analogue one.

There is, however, a Danish law based on the European Union’s e-commerce Directive (EU Directive 2000/31/EC) which is usually referred to as the Danish e-commerce law (L 2002-04-22 nr 227). The Danish e-commerce law contains certain regulations on marketing on the internet, and these rules, of course, apply to marketing on social media. The primary example is Section 9 of the Danish law on e-commerce that states all commercial communication which is part of an information society service must be made and presented in a manner so that it is clear that it is indeed commercial communication. It must also be clear on whose behalf the commercial communication is shared. This means that commercial communications on social media must indicate that they are commercial communications. This also follows from Section 6(4), of the Danish Marketing Act, but in theory, the most correct legal basis to say that hidden advertisements are outlawed on social media, is the e-commerce law.

Finally, the Danish Consumer Ombudsman has issued guidelines for influencer marketing.

Generally, a trader cannot be held liable for content created by a third party.

There may exist an exception in cases, where a third party posts content to the trader’s website or social media channel, and this third party post gives the impression that it somehow expresses an official stance of the trader. The trader may be held liable for misleading marketing in such cases. This is, however, a niche, hypothetical and to our knowledge, no case of marketing regarding the liability for a third party post has ever arisen.

Hidden advertisements are prohibited. On the internet, the primary source of law that states as much is the Danish e-commerce law. According to Section 9, all commercial communication which is a part of an information society service must be made and presented in a manner so that it is clear it is indeed a commercial communication. It must also be clear on whose behalf the commercial communication is shared. This means that commercial communications on social media must indicate that they are commercial communications.

According to Section 6 of the Danish Personal Data Protection Law, children under the age of 13 cannot give valid consent to their personal information being processed by an information society service which is aimed at children. This description will also apply to social media if they are used by children even if they are not explicitly aimed at children. This means that children may not see social media without their parents’ consent until they turn 13 years old.

Article 17 of the Directive on Copyright in the Digital Single Market (Directive 2019/790/EC, the “DSM Directive”) is implemented in Section 52 c of the Danish Copyright Act. Section 52 c concerns the responsibility of online content-sharing service providers (like YouTube) under copyright law for user uploads. According to the provision, online content-sharing service providers carry out a copyright relevant act of “communication to the public” when they give access to copyright-protected content uploaded by their users. Thus, the service provider must obtain an authorisation from the relevant rights holders.

It is prohibited to market services or products in a way that may be confused with editorial content. According to Section 9 of the Danish law on e-commerce and Section 6(4), of the Danish Marketing Act, employment of so-called hidden advertisements is unlawful. This means, for example, that posts on social media or columns in a newspaper must make it clear to the consumer that they contain an advertisement, and they are not, in fact, simply neutral posts by a social media user or journalistic content. It is, however, allowed to market products on social media and in newspapers and magazines. It must simply be obvious that it is marketing, but if this is possible whilst still retaining the look and feel of editorial or entertainment content – though this may be difficult in reality.

There are no special rules for social media influencer campaigns per se. The most important rules to be aware of are the rules against so-called hidden advertisements in Section 9 of the Danish law on e-commerce. Depending on the audience of the influencer, the rules to protect children from unfair marketing may also be relevant. The general principle of marketing to children in Section 3(2) of the Danish Marketing Act, and it simply states that marketing, which children are particularly vulnerable to, must be made with children and their natural credulity, lack of life experience and lack of critical sense in mind. These rules apply to all commercial communication, but they are likely especially important on social media today.

The Danish Consumer Ombudsman has issued guidelines for influencer marketing.

In principle, an advertiser can be held liable for content posted by influencers. It depends on what instructions were given to the influencer and what the agreement between the parties is. For example:

If the advertiser gives the influencer a script that the influencer must simply repeat verbatim, and the script contains information that is misleading, then the advertiser will be held liable.

If on the other hand, the influencer goes beyond what the advertiser had intended or what could be reasonably expected from the influencer, then the advertiser would not be held liable.

Between these two extreme situations, there is a spectrum where advertisers may or may not be found liable.

It is assumed in the literature on copyright that an advertiser may use quotes or scores (for example a score of five stars) from reviews of the advertiser’s work in advertisements for said work. As long as the reviews are not presented in a misleading manner, the use is permitted under Danish marketing Law.

The underlying rule is found in Section 22 of the Danish Copyright Act, which states that it is permitted to quote from a published work in accordance with good practice and to the extent required by the purpose.

If an advertiser chooses to use consumer reviews in their marketing, the advertiser is indeed liable for any misrepresentation. For example, if the consumer reviews contain misleading or false information that could deceive consumers, ie, be deemed as misleading marketing, then the advertiser would be liable, especially if it is regarding a product or service’s features, whereby the advertiser would know that certain information could be misleading. If on the other hand, the customer review contains information which the advertiser could not reasonably know is true or not, they would not be liable. Because of this possible liability, advertisers are recommended to monitor reviews, but they do not have an active duty to do so.

According to Section 10 of the Danish Marketing Act, companies may not contact anyone using so-called “electronic post”, unless the person concerned has given their prior consent to this. Emails fall within this broad definition of “electronic post” in Section 2(15) and therefore email marketing is not allowed without prior consent.

What constitutes adequate consent is defined in Section 2(14) of the Danish Marketing Act. Valid consent is “any voluntary, specific, informed and unambiguous expression of will”. This definition is based upon the definition of “consent” in the European Union’s General Data Protection Regulation (Regulation (EU) 2016/679). Notably, consenting to a company’s general terms of service will usually not be adequate to constitute valid consent.

The consent is based upon an opt-in model. This means that the end recipient of emails must give their consent prior to receiving the first email. The consent must express an active decision which means that “consent” given through the use of a pre-ticked box does not constitute valid consent under the definition.

There exists an important exception to the above. Companies may, in certain situations, send marketing emails. According to Section 10(2), a trader who has received a customer’s electronic address in connection with the sale of products may market their own similar products to the customer via “electronic post”. This requires, however, that the company gives the customer a clear and unambiguous opportunity to opt out of this easily and free of charge. Such an opportunity to opt out must be given in connection with providing the address to the trader and with each subsequent inquiry.

If these rules are not followed, the perpetrator will be given a fine.

According to Section 4 of the Danish Consumer Contracts Act, a company may not, as a point of departure, market to consumers. Telemarketing is therefore not allowed.

Few industries are exempt from this ban. Notably, telemarketing is allowed to sell books, newspaper subscriptions and insurance.

If these rules are not followed, the violator will be given a fine.

Commercial entities may contact other commercial entities by phone to market their goods or services.

The literal wording of Section 10 in the Danish Marketing Act outlaws the use of “electronic post” for use in marketing without prior consent. Text messages fall within this broad definition in Section 2(15), which means that advertising through text messaging requires prior consent. See 6.1 Email Marketing for elaboration.

Targeted/interest-based advertising based on consumer data is regulated by GDPR, the Danish Data Protection Act and the Danish implementation of the European Union’s Directive on privacy and electronic communications (EU Directive 2002/58/EC).

Processing personal data and cookies for targeted advertising requires consent by the data holder, according to the above-mentioned regulation.

As a private person, you can also sign up for the “Robinson list” (in Danish, Robinsonlisten). The Robinson list is an opt-out list that allows users to avoid receiving marketing transmissions via email, telephone, etc. The Robinson list is compiled by the Central Personal Register. It will be a violation of Section 10(4)(2) of the Danish Marketing Act if a company contacts a person for the purpose of direct marketing if the person is registered on the Robinson list.

Personal information may be collected and processed regarding children in the same instances as information regarding adults with one significant modification: if the legal basis for the processing of personal data is consent from the subject of the processing (see article 6(a)), then the rule modifications of the requirements of consent from children must be respected. In short, this means that if a company’s website is directed toward children (or used by children even though it is not specifically aimed at them), then consent given by a child under the age of 13 is only sufficient if the child’s parents consent as well.

There is no applicable information in this jurisdiction.

In Denmark, it is legal to offer and market sweepstakes and contests, and national rules that generally outlaw the employment of sweepstakes in marketing were deemed to be in conflict with EU law by the CJEU in the joined cases C-261/07 (Total), C-299-07 (Samona) and C-304/08 (Plus).

Danish law does, however, include certain restrictions on how sweepstakes and contests may be conducted and marketed.

Marketing of sweepstakes and contests is regulated, principally, by the generally applicable Danish Marketing Act and by the Danish Law on Gaming.

The Conduct of Sweepstakes and Contests

It is mandatory for the advertiser to make all relevant information about the game, including the rules of the game, easily accessible. This includes all costs associated with participation (fees, mail, freight, telecommunications, etc). Especially costs must be clearly communicated.

Which information is relevant for the game and advertiser to provide depends on the type of game.

According to Section 34 It is illegal to receive bets for gambling from persons under the age of 18 and any other dissemination of such persons’ participation in gambling is prohibited.

The Marketing of Sweepstakes and Contests

Initially, the Danish Marketing Act, states that traders must exercise good marketing practices and their marketing may not be misleading in any way. Thus, it is important that it is made clear who is offering the sweepstake. If the sweepstakes are offered as a part of a marketing campaign, this must also be clear to the consumer. Similarly, the rules of the contest and the terms for participation must be conveyed in a clear manner.

According to Section 36(1)(1) of the Danish Law on Gaming one must present the chance of winning in a correct way, so you don’t create the impression that the chance of winning is greater than it actually is.

Marketing of sweepstakes and contests must not be targeted at children and young people under the age of 18 in either communication, design or media choices; please refer to Section 36(1)(3).

Marketing of sweepstakes may not be done in a manner that give the impression that participation in games promotes a solution to financial problems or gives the player social acceptance. If famous persons participate in the marketing campaign, the campaign may not untruthfully, imply that participation in games has contributed to the success of the celebrity.

Games purely based on skill are not specifically regulated. Games based purely or partly on chance are regulated by the Danish Gaming Act. Games based purely or partly on chance, and which require stakes by the entrant, are deemed as lottery and requires a license which is unobtainable as it is given to state-owned lottery companies (with the exception of charitable lotteries, which can be allowed). The question of skill or chance also has tax implications. All these games must adhere to the Danish Marketing Act.

If the game is deemed a lottery, a licence is needed, but that licence is only given to charitable lotteries.

Games which do not require a stake by the entrant, does not need to be registered or approved, but in certain situations, taxes must be paid on the prizes awarded and in order to pay those taxes, the game must be submitted to the Danish Tax authorities.

EU Directive 98/6 on consumer protection in the indication of the prices of products offered to consumers has been implemented into Danish law in the Danish Price Marketing Order.

One of the most important aspects of marketing is the price and how it is presented to the consumer. Price marketing must not be misleading in general, but the Price Marketing Order also includes more specific requirements.

A product cannot be marketed as free if there are any monetary requirements, stakes or anything similar for the consumer. This includes requirements which might not have a tangible value but does nonetheless have a monetary value.

When marketing reduced prices, one must only compare the price to the normal price of the product. The normal price of the product is the lowest price the product has had in the last 30 days. One cannot compare the reduced price to the recommended retail prices unless the recommended retail prices is the lowest price in the last 30 days.

There are more regulations regarding free and reduced-price offers than what is mentioned above.

There are no rules or regulations that explicitly concern continuous delivery of services. As long as it is clear to the recipient of a continuous service that the service is continuous, how often they will be charged what amount, how to cancel the service and payments, and what the service they receive for their payments is, there are no rules prohibiting such services or business models. However, if all of this is not clearly communicated to the consumer, the trader will have acted against Sections 5 and 6 of the Danish Marketing Act prohibiting unfair and misleading marketing, as well as acting contrary to good marketing practices.

It is important to note that it is not necessarily sufficient for a trader to simply have the terms of the continuous payment somewhere on their website. The terms must be communicated clearly to the consumer. In a recent case, the Danish High Court (Vestre Landsret) found a company liable and fined it for acting in conflict with Sections 5 and 6 of the Danish Marketing Act even though the terms of a continuous service were on their website. The terms of the continuous service were not communicated clearly enough to the consumer in the general marketing or on the website.

Should the terms of the continuous service change, the trader will have to inform the recipient in a manner that effectively gives the recipient the necessary information to evaluate whether to cancel future “delivery” of the continuous service. This will particularly be the case, if the price of the service changes, since changes to the price will practically always be central to the contract between parties, so even a small change must be clearly communicated.

There are, as of yet, no rules regulating the employment of artificial intelligence in marketing material. Along with every other country in the world, Denmark is currently facing the legal and practical challenges caused by the rapid evolution of AI technologies.

One may have to consider whether the use of AI systems in the development of marketing material may be illegal due to the laws on copyright. Since it is difficult at the moment to discern the source of an AI’s output and with some AI systems impossible, advertisers cannot know for sure if AI content is infringing upon any copyrights or not. It is also not clear how AI systems will be regulated in relation to intellectual property rights as of yet.

There are no rules regulating the employment of AI systems in the development of marketing material per se. Marketing may, however, not be misleading. This means that it is not allowed to market a product as having capabilities that it does not possess – this includes AI-related capabilities. This also means that it is prohibited to market a product as being developed through the use of AI, if this is not true.

There are no rules or guidelines related to the uses of chatbots.

There are no Danish rules or regulations specifically regarding marketing for NFTs or cryptocurrency.

There are no rules or regulations that apply specifically to marketing in a/the metaverse. The Danish Marketing Act is adequately broad in its scope and field of application as it also applies to marketing in a/the metaverse. The standard for what constitutes misleading or unfair marketing is the same in the digital world as in the analogue one.

In Denmark, there are a number of rules regarding advertising for some specific products:

Food

The food industry is highly regulated both at a national Danish level and in the EU. In terms of marketing law, EU Regulation 1169/2011 (labelling regulation) and Regulation 1924/2006 (claims regulation) as well as Regulation 1151/2012 (quality schemes for agricultural products and foodstuffs) should be highlighted. Marketing of food products must not be misleading; please see Section 14 of the Danish Food Law. When using a health claim, ie, a claim that indicates that there is a connection between a food product or a food product’s components and health, it is only legal if it is authorised. The rules on authorisation can be found in the aforementioned Claims Regulation (1924/2006).

Medicinal products

The basic requirements for the marketing of medicinal products are that the advertisement must be adequate and factual and must not be misleading; please refer to Section 63 of the Danish Medicines Law. The advertisement must therefore not contain incorrect or misleading information and it must contain the necessary information to enable the recipient to assess when the medicine should be used. In addition, the information must be in accordance with the Danish Medicines Agency’s approved summary of product characteristics. It is illegal in Denmark to advertise prescription-only medicines to the general public; please refer to Section 66 of the Danish Medicines Law. There are also rules in the Law on Advertising of Medicinal Products. Section 4 of this law states, for example, that advertising to the public must be designed so that it is clear it is advertisement, and that the advertisement concerns a medicinal product.

Alcohol

Section 11 of the Danish Marketing Act states that alcohol may not be marketed to children and young people under the age of 18.

Tobacco

In Denmark, all forms of advertising for tobacco products are prohibited; please refer to the Law on Prohibition of Tobacco Advertising. Advertising for electronic cigarettes, etc (both with and without nicotine) is generally prohibited; please see Section 16 of the Electronic Cigarettes Law.

Cannabis

According to Section 66(1)(3) of the Danish Medicines Law, it is illegal to advertise cannabis, as cannabis is covered by the Danish Law on euphoriant substances.

Product placement, where a product, service or trade mark is shown or mentioned in a programme either on radio or television in return for payment or other consideration, is generally prohibited; see further Section 85a of the Danish Radio and Television Law. Some exceptions to the prohibition are, for example, if it is a feature film, sports programmes or light entertainment programmes. However, the exceptions do not apply to programmes aimed at children under the age of 14.

Regardless of the exceptions, ie, where product placement is permitted under Danish law, there are a number of rules that still apply. This applies, for example, to:

• the prohibition of product placement of tobacco products; see further the Law on Prohibition of Tobacco Advertising;
• the prohibition of product placement of prescription drugs; see further the Medicines Law; and
• the prohibition of product placement of alcohol if the product placement is specifically aimed at minors; see further the Danish Marketing Act.

Denmark has a wide range of rules governing the marketing of specific categories of products and services. These include rules on the marketing of food, medicine, alcohol, tobacco and euphoriant substances. Here are just a few more examples:

• Advertisements for employers’ organisations and trade unions are not allowed to be broadcast on television; see further Section 76(3) of the Danish Radio and Television Law.
• With regard to consumer loans (payday loans), Sections 11a and 11b of the Danish Marketing Act contain two prohibitions on the marketing of consumer loan activities.