Prohibition against marketing of health services in the media does not include marketing on the Internet
On 29 April 2009 the Eastern High Court ruled that the prohibition against marketing of health services does not include marketing on the Internet. A Danish website selling weight loss services had made links on its website directing the visitors to a TV-station's website showing previously sent television programmes, where the website was mentioned. The High Court ruled that such linking does not constitute breach of the prohibition of marketing of health services in the media.
Under Danish law marketing health services on the Internet is legal. However, the Danish Marketing of Health Services Act prohibits marketing of health services in television, film, video etc.
A Danish website advising on weight loss, Slankedoktor.dk, linked from its website to a regional TV-station website where the website was mentioned in some previously shown video clips. The video clips were programmes on overweight and weight loss in which the managing director of Slankedoktor.dk, a physician, participated in the programme as one of several experts on weight loss. The programmes also featured people who had lost weight through help from the website.
Prosecution was brought against the company providing the website stating that such linking to video clips were not in compliance with the prohibition of marketing health services in the media. The managing director of the company providing the website claimed that linking to a programme produced by an independent TV-station cannot be considered marketing in breach of the law regulating marketing of health services. Furthermore, heclaimed that the matter does not concern actual marketing on TV, on the contrary, only linking to TV programmes on the Internet, which can be visited by anyone showing interest herein. The National Board of Health on the contrary claimed that all motion pictures are covered by the prohibition against marketing of health services in the media, and the Board further supported its view by the fact that the preparatory works to the law said that the prohibition concerns all forms of television.
In the case referred to in the Danish Weekly Law Reports 2009.2064, the Eastern High Court upheld the decision from the first instance court stating that the prohibition against marketing of health services in the media does not include marketing on the Internet. The High Court referred to the wording of the law compared to its background, which was considered a liberalisation of the law in force at the time. The first instance court had also emphasized that the website's visitors were looking for advice and information on various products and services in relation to weight loss. Furthermore, the High Court did not find that the prosecutor had proved that there had actually been marketing of the website and its health services in the video clips on the TV-station's website.