As I have read in this article, the train of judgments regarding the identification of affiliates and commission payments is gaining momentum. Now there is the Third Judgment on the subject.
Thus, the Regional Court of Hamburg has ruled that a portal that mediates real estate agents must inform users that the portal operator receives a percentage share of profit in the event of a commission agreement between the user and the broker.
It was common ground in the proceedings that the portal operator received a commission on success from at least one part of the brokers recommended by him. However, there was no clarification on this.
The Landgericht Hamburg therefore accepted the view of the Competition Centre and regarded the defendant’s advertising as misleading without any clarification on the commission.
In this regard, it stated:
‘The advertising is misleading within the meaning of Paragraph 5 of the UWG because it suggests to the reader that the broker recommendations made by the defendant are made on the basis of factual criteria and financial consideration. In any event, this will be accepted by a not inconsiderable proportion of the Internet users targeted by advertising. The advertisement does not contain sufficient evidence that the defendant receives a commission on success for a part of the brokers it recommends. Contrary to the defendant’s view, this is by no means self-evident.’
In addition, there is also an infringement of Paragraph 5a(4) of the Treaty. 2 UWG, since the profit participation agreed with the brokers is an essential piece of information to be clarified.
Although the judgment is not final, it follows the case law of other courts and, in principle, the case-law on influencers.