Diagnosis via click: ECJ must decide on advertising ban for telemedicine

For many patients, the future of medicine is already taking place in the browser. However, the legal hurdles for digital health services are high in this country. Now the European Court of Justice (ECJ) has to deal with the question of how much freedom the cross-border digital health market can tolerate. The First Civil Senate of the Federal Court of Justice (Bundesgerichtshof, BGH) has suspended proceedings that could shake the cornerstones of German medicinal products advertising law. The main issue is this aspect: Is Germany allowed to prohibit advertising for medical treatments that are based exclusively on online questionnaires, if these services are provided by doctors from other EU member states?

The legal dispute originates from the business model of a platform based in Germany that supports patients with sensitive issues such as erectile dysfunction, hair loss, or acne. The process is simple: users fill out a medical questionnaire on the website. The data entered is transmitted to partner doctors based in Ireland, who make a diagnosis based on the information and issue a private prescription if necessary. There is no direct contact, for example via video chat or phone call. The medication is then sent by post from a mail-order pharmacy.

A consumer protection association, which includes several medical associations, took legal action against this model. The accusation is that this form of patient acquisition violates the German Medical Products Advertising Act. According to this law, advertising for remote treatments that do not meet the professional standards in this country is not permitted.

Between freedom of advertising and patient protection

The lower courts presented an ambivalent picture. The Munich I Regional Court initially dismissed the lawsuit. The Higher Regional Court (OLG), however, followed the plaintiffs' arguments. The Munich judges in the appellate instance saw the online service as impermissible advertising for remote treatments. In their opinion, the professional standard recognized in Germany for conditions such as erectile dysfunction mandatorily requires a personal consultation to clarify any psychological causes. A mere text questionnaire is not sufficient for this.

Since the advertising thus drummed up treatment that contradicted domestic medical due diligence obligations, it was unfair competition, the OLG ruled. It is not relevant whether the Irish doctors acted entirely legally under their domestic professional law.

The BGH now sees a potential conflict with EU law. While the German advertising ban for remote treatments primarily serves the health protection of the population, according to the Senate, it also represents a significant barrier to the free movement of services within the EU. If an Irish doctor is not allowed to promote his services to German patients simply because the German interpretation of the medical standard is stricter than the Irish one, the cross-border market is effectively blocked.

The Karlsruhe judges therefore want to know from the ECJ: Is the restriction of freedom to provide services by the German advertising ban justified to protect patients from the alleged dangers of purely questionnaire-based remote treatment?

Structural brakes for digital medicine

The legal dispute touches a sore spot in Germany's digitalization strategy. The fact that telemedicine is still running with the handbrake on in this country is not purely a legal phenomenon, but appears to be systemically induced. The Office for Technology Assessment at the Bundestag (TAB) already pointed out last year that significant reform is still needed to boost telemedicine in Germany. According to the report, the sector is only slowly finding its way into regular medical care.

The TAB experts pointed out that a combination of normative, organizational, technical, personnel, and social barriers limits the spread of the technology. The current proceedings before the BGH underscore these normative hurdles, which often stifle innovation in its infancy.

The ECJ's decision is therefore likely to have a signaling effect for the entire industry, extending beyond the individual case of online questionnaires. If the Luxembourg judges decide that the German advertising ban is disproportionate, the strict rules of the Medicinal Products Advertising Act would likely have to be relaxed. This would pave the way for greater liberalization of digital health services, where physical presence or even visual contact with the doctor is increasingly becoming secondary.

Critics fear a weakening of medical due diligence rules in this case. Proponents point to the low-threshold access to medical help and the necessary modernization of the healthcare system. The legal situation for platform operators and digital pioneers in medicine remains uncertain until a ruling from Luxembourg.

(nie)