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.

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.