On June 9, 2011, the Court of Justice of the European Union ruled on an issue concerning surreptitious advertising, following a preliminary ruling from the Greek Council of State in the proceedings of "Eleftheri tileorasi AE Alter channel and Konstantinos Giannikos, Ypourgos Typou kai Meson Mazikis Enimerosis and Ethniko Symvoulio Radiotileorasis".
The dispute is about a broadcast programme during which a dentist presented a cosmetic dental treatment as innovative, applying it directly to a patient, and showing photographs of the results of this treatment at the same time.
According to Directive 89/552, "television advertising and teleshopping shall be readily recognisable as such and kept quite separate from other parts of the programme" (art.10, par.1), and surreptitious advertising is prohibited.
Greek law considers the provision of payment or other consideration as a constitutive element of surreptitious advertising while the Directive considers them mere presumptions of surreptitiousness. The Council's question was whether the differentiated transposition of the Directive will lead to a different treatment of surreptitious advertising or if, on the other hand, there should be a uniform application.
The Court decided that in order to ensure a uniform interpretation of European law and more effectively protect viewer interests, when a "representation is intended by the broadcaster to serve advertising and might mislead the public as to its nature" (art.1.d of Directive 89/552), without being readily recognisable as advertisement, it is considered surreptitious advertising and, therefore, prohibited, even without provision of payment or other consideration. Indeed, since the existence of consideration is often difficult to prove, it should not be a constitutive element of surreptitious advertising.
Judgement of the Court : http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62010J0052:EN:HTML