OLG Munich: Adver­ti­sing for digi­tal medi­cal con­sul­ta­ti­on by doc­tors in Switzerland

On July 16, 2019, the Munich Hig­her Regio­nal Court issued a Judgment in con­nec­tion with an app of a Swiss pro­vi­der fel­led. Appar­ent­ly, a pro­vi­der had offe­red ser­vices of a sub­si­dia­ry, a health insu­rer, via an Inter­net pre­sence with a .de domain in Ger­ma­ny, inclu­ding a “digi­tal doctor’s visit” to Swiss doc­tors. In the view of the Munich Hig­her Regio­nal Court, this adver­ti­sing vio­la­tes the Ger­man Health­ca­re Adver­ti­sing Act (HWG) and is inadmissible.

The fol­lo­wing Gui­ding princi­ples:

1) Sec­tion 9 sen­tence 1 HWG is not to be inter­pre­ted restric­tively to the effect that the pro­hi­bi­ti­on of adver­ti­sing for remo­te tre­at­ment would requi­re the adver­ti­sed tre­at­ment to be inad­mis­si­ble. Rather, Sec­tion 9 HWG has its own regu­la­to­ry con­tent in that it does not pro­hi­bit distance tre­at­ment per se, but rather the adver­ti­sing thereof.

2. even with the new regu­la­ti­on of § 9 HWG (valid from 19.12.2019), the legis­la­tor has adhe­red to the fun­da­men­tal assess­ment that a Remo­te tre­at­ment adver­ti­sing In the inte­rest of avoiding the risks to public health in gene­ral asso­cia­ted with such adver­ti­sing. Pro­hi­bi­ted (cf. Sec­tion 9 sen­tence 1 HWG). Only under the con­di­ti­ons spe­ci­fied in Sec­tion 9 Sen­tence 2 HWG is the adver­ti­sing of remo­te tre­at­ments now per­mit­ted by law.

3. an adver­ti­se­ment for remo­te medi­cal tre­at­ment in the form of a digi­tal doctor’s visit, wher­eby pati­ents living in Ger­ma­ny are offe­red the pos­si­bi­li­ty of obtai­ning dia­gno­ses, the­ra­py recom­men­da­ti­ons and sick notes for unspe­ci­fied tre­at­ment cases and situa­tions from doc­tors abroad via their smart­pho­nes by means of an app., is not cove­r­ed by the excep­tio­nal cir­cum­stance of Sec­tion 9 sen­tence 2 HWG, accord­ing to which it is assu­med that medi­cal con­ta­ct with the per­son to be trea­ted is not necessa­ry in the adver­ti­sed cases accord­ing to gene­ral­ly accep­ted standards.

Ger­man law was app­li­ca­ble in accordance with Art. 6 (1) of the Rome II Regu­la­ti­on (princip­le of effect).