In Germany, the legal situation regarding advertising with before-and-after pictures for cosmetic surgery is clearly regulated by the Therapeutic Products Advertising Act (HWG). The HWG generally prohibits advertising to the public with before-and-after pictures in medicine. According to Section 11 (1) sentence 3 no. 1 of the HWG, plastic surgery operations may not be advertised with the effect of such treatment by means of a comparative representation of the body condition or appearance before and after the operation.
Such comparative images are mainly found online, on the websites or increasingly on the social media channels (Instagram, TikTok etc.) of the respective practices/clinics. The legislator sees a high risk of misleading information in such images. The reason for this is that the results of cosmetic surgery can vary greatly from person to person and are therefore not universally valid. The aim is to prevent the medical layperson from being influenced in an unobjective and suggestive manner.
The Higher Regional Court of Koblenz (judgment of 23.04.2024, Ref. 9 U 1097/23) recently had to deal with the following before and after pictures with which a clinic advertised lip injections with hyaluronic acid on its website:
The defendant – a specialist clinic for aesthetic surgery – was of the opinion that this was not a representation within the meaning of Section 11 (1) sentence 3 no. 1 HWG. It justified this by stating that there are no recognizable real reference points in an avatar and therefore no suggestive effect on people. The term “representation” in the context of Section 11 para. 1 sentence 3 no. 1 HWG is too vague and restricts the defendant’s ability to inform potential patients about the result of the procedure to be carried out.
The OLG Koblenz confirmed the legal opinion of the LG Mainz, according to which Section 11 HWG does not require a photorealistic representation of persons. The wording of the standard only requires a “representation”, which is already given in the case of a recognizable representation of the human body. Technique, style or type of media reproduction are irrelevant in this context. Furthermore, it should also be taken into account that schematizing or stylizing depictions are particularly suitable for having a suggestive effect. This is because such caricatures often depict images drastically.
The term “representation” is therefore deliberately broad and is intended to cover all images that can be perceived visually. This therefore also includes computer-generated images, so-called avatars, which are created using software to show a change in appearance before and after cosmetic surgery. The broad concept of “representation” is intended to prevent circumvention and protect patients from being influenced in an unobjective and suggestive manner. The protection of patients, who are often still very young, is particularly important in times when the reach of aesthetic clinics is constantly growing through social media.
