BGH: Amazon is not liable for errors of affiliates

The Federal Court of Justice has ruled that the operator of an affiliate program is not liable for the misleading advertising of an affiliate partner if the affiliate partner has acted within the scope of its own product or service offering and there is therefore no extension of the business operations of the operator of the affiliate program. This is multiple, quite an interesting decision and could have relevance for agencies and other affiliate operators.

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1. Who sued

2. Previous process history

3. Decision of the Federal Court of Justice

3.1. Author: Marian Härtel

Key Facts

• The Federal Court of Justice ruled that affiliate program operators are not liable for misleading advertising by affiliate partners.
• The plaintiff Bett1 sued the Amazon affiliate program for misleading advertising by an affiliate.
• The Higher Regional Court rejected the plaintiff's appeal; Amazon is not liable for the infringement of competition law.
• The court found that there was no expansion of Amazon's business operations by affiliates.
• Advertising via affiliate links is part of the products that affiliates design in their own interest.
• Affiliates act independently and not on behalf of Amazon and are therefore liable themselves.
• Amazon had no influence on the affiliate's advertising activities, therefore no liability.

Who sued

The plaintiff was bed. These attacked the Amazon affiliate program, in which affiliates can place links to Amazon offers on their own website. If this leads to a sale, the affiliate receives a percentage of the purchase price as commission. In 2019, an affiliate advertised mattresses, among other things, using links to corresponding offers on Amazon on its website, which dealt with the topics of sleep and mattresses in the broadest sense and at least visually corresponded to an editorial online magazine. Bett1 considered the affiliate’s advertising to be misleading and notified Amazon, which had been notified of its affiliate’s breach of competition law pursuant to Section 8 para. 2 UWG, the company was sued for injunctive relief.

Previous process history

The landgericht dismissed the action. The Higher Regional Court dismissed the plaintiff’s appeal. The contested advertising was misleading and therefore anti-competitive. However, Amazon is not liable for this breach of competition by the affiliate as a perpetrator or participant. The prerequisites for the liability of the company owner for agents pursuant to Sec. 8 para. 2 UWG did not exist.

Decision of the Federal Court of Justice

The Federal Court of Justice dismissed Bett1’s appeal. The intrinsic reason for attributing the business activity of the commissioner pursuant to sec. 8 para. 2 UWG lies above all in an expansion of the business operations to the benefit of the proprietor and a certain control of the risk area by the proprietor. Taking into account the design of the Amazon affiliate program as well as the impugned website of the affiliate, there was no such expansion of the business operations of the first defendant in the case in dispute and thus no intrinsic reason for attribution pursuant to Section 8 (1). 2 UWG. If affiliates develop their own products or services – in this case, a website with editorial articles on the topics of sleep and mattresses – whose content they design at their own discretion and use to earn commissions from various providers, the advertising via the affiliate link is part of the product, the content of which is designed by the affiliates on their own responsibility and in their own interest. The links would then only be set in order to generate commissions in their favor. Such own business operation of an Affiliate does not constitute an extension of Amazon’s business operation.

In the case in dispute, there was also a lack of the requirement for liability under Section 8 (1) of the German Civil Code. 2 UWG required control of the risk area by Amazon. When linking, the Affiliate does not act in fulfillment of an order or the agreement concluded with Amazon, but within the scope of the product developed by it and solely in its own name and in its own interest. Amazon would also not have to secure a determining and enforceable influence (e.g. in AGB!!), because it has not expanded its business operations with the affiliate’s product.

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.