Affiliate links must be labeled as advertising

In a recent ruling (Ref. 29 U 1582/19), the Munich Higher Regional Court clarified that online teasers with affiliate links must be labeled as advertising. This decision is of great importance for many website operators and influencers, as affiliate links are widespread.

Background of the judgment

In the case in question, a website operator had used teasers with affiliate links without labeling them as advertising. The links led to online stores where the advertised products could be purchased. The operator received a commission for each purchase via these links.

The Munich Higher Regional Court considered this to be a violation of the Unfair Competition Act (UWG). According to Section 5a (6) UWG, commercial content that is not clearly evident from the circumstances must be labeled as advertising. The court stated: “The use of affiliate links is a commercial act that is likely to induce the consumer to make a commercial decision that he would not have made otherwise.”

Importance for website operators and influencers

The ruling has far-reaching consequences for all those who use affiliate links. It is now clear that these links must be labeled as advertising in order to be on the safe side legally. Labeling can be done, for example, by using terms such as “advertisement”, “sponsor reference” or “affiliate link”.

As a lawyer who used to run an editorial games magazine himself and now looks after many website operators and influencers, I think this clarification is very important. Affiliate marketing is a widespread business model that now needs to be implemented in a legally sound manner. Affiliate links are a frequently used means of monetizing content, especially in the gaming and esports sector, where I advise many clients.

Conclusion

The recent ruling by the Higher Regional Court of Munich (case no. 29 U 1582/19) on the obligation to label affiliate links is not a surprise, but once again clarifies the legal requirements in this area. The court has ruled that online teasers with affiliate links must be clearly labeled as advertising in order to comply with the provisions of the Unfair Competition Act (UWG).

This ruling creates legal certainty for website operators and influencers who use affiliate links. They now know how to mark these links correctly in order to be on the safe side legally. Clear labeling, for example with terms such as “advertisement”, “sponsor notice” or “affiliate link”, is essential, and anyone who has not yet used any or sufficient labeling should urgently review and adapt their page or post. This is the only way to avoid warnings and legal consequences. This clarification is particularly important in the gaming and esports sector, where affiliate links are often used to monetize content.

As a lawyer specializing in IT law and media law, I have been dealing with the topic of affiliate links for some time now. I had already pointed out in an earlier blog post that the labeling obligation applies not only to websites, but also to YouTube, gaming sites and other social media platforms.

The Higher Regional Court of Cologne had also already dealt with the identification of affiliate links and clarified that the placement of such links must be sufficiently clear and unambiguous. The current ruling of the Munich Higher Regional Court fits seamlessly into this case law. Another important aspect is cookies, which are often used in connection with affiliate links and banner advertising. The following also applies here: The user must be informed transparently about the setting of cookies. Consent is required if the cookies are not absolutely necessary.

Overall, it is clear that the legal requirements in the area of affiliate marketing and advertising are complex and must be carefully observed. As a lawyer, I am happy to assist my clients to support them in the implementation and minimize legal risks. Only with the necessary care and expertise can the benefits of affiliate marketing be exploited and legal pitfalls avoided at the same time.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.