Are before/after pictures allowed?

In the world of aesthetic medicine, before and after pictures play an important role in presenting the results of aesthetic injections to potential patients.
In this blog article, we will look at the legal aspects and examine whether before and after pictures are legally permitted for aesthetic injections in Germany. It is important to know and understand the legal requirements to ensure that the use of such images complies with legal requirements.

The Therapeutic Products Advertising Act (HWG):

The Therapeutic Products Advertising Act regulates the advertising of medical and aesthetic treatments in Germany. According to Section 11 (1) HWG, “only factual, informative and objective statements” are permitted in advertising. In this context, before-and-after images can be regarded as an advertising representation and must comply with the legal requirements.
Advertising with before-and-after images for aesthetic operations is clearly prohibited (see Section 11 (1) sentence 3 HWG: “The advertising of surgical plastic surgery procedures with comparative representations of the body condition or appearance before and after the procedure is prohibited”).

In the case of aesthetic injections, however, the situation is not quite so clear. Whether these are basically also “surgical plastic surgery procedures”, which would be included in the ban, has not yet been clarified by the highest court or generally accepted and is therefore at least disputed. Whether or not you want to take the risk of a legal dispute here in case of doubt is therefore still up to you: A typical grey area.
Nevertheless, it should at least be made clear that the result of the before and after comparison is an injection and not a surgical operation in the classic sense.

Case law and competition law:

Case law has established that before and after pictures are generally permitted as long as they are not misleading. They must convey a realistic picture of the actual results and must not be exaggerated or manipulated. It must also be clear that the results are individual and cannot be guaranteed for every patient. Violations of competition law can lead to legal consequences.

The protection of personal rights:

When using before and after pictures, it is important to respect the personal rights of the people depicted. As a rule, patients should give their written consent to the use of their images for advertising purposes. Anonymization techniques such as pixelation or removal of faces can also be used to protect the identity of patients.

The role of the medical professional code of conduct:

The German Medical Code of Conduct sets out ethical guidelines for doctors. Some state medical associations in Germany have issued guidelines that regulate the use of before and after images. It is important to follow the specific regulations of each state’s professional code and ensure that the use of such images complies with ethical standards.

The importance of education and transparency:

Regardless of the legal aspects, it is very important to provide patients with comprehensive information and to be transparent. Before and after pictures should be considered as informational material and not as a guarantee of specific results. Professionals should inform patients that individual differences and other factors can affect the final outcome.

Conclusion:

In our legal opinion, the use of before and after pictures for aesthetic injections in Germany is at least not clearly prohibited under certain conditions. Nevertheless, individual legal advice is generally advisable.
It is important to comply with the provisions of the Therapeutic Products Advertising Act, competition law, the medical professional code of conduct and personal rights. By providing transparent information and using authentic images, professionals can ensure that the use of before-and-after images is ethically justifiable and legally permissible. Ultimately, it is of the utmost importance that patient safety and trust in the treatment process are guaranteed.

UPDATE:
In June 24, the Federal Court of Justice issued a ruling confirming the Higher Regional Court ruling that the use of before-and-after images in advertising is also prohibited for wrinkle injections. We therefore recommend not using before and after pictures at the moment!