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LG Munich: Affiliate links must be sufficiently identified!
Recently, the Higher Regional Court had issued a highly interesting ruling on the issue of the identification of affiliate links (see my contribution to this in this post),which I once claimed that 95 of the relevant agencies in the affiliate marketing area are not aware of and the remaining 5 are unaware of the effects.
I had already warned some clients, such as streamers, influencers and esports teams, because the risk of warning is likely to be at least as high as in the case of a lack of advertising labelling by influencers on Instagram.
I should be right, because I have just become aware of another judgment of the Munich Regional Court, which strikes the same notch.
What do You need to specify?
The latter decided that a website operator posting posts on its website must state sufficiently clearly that it participates in an affiliate partner program and receives a corresponding commission for the linked products. The fact that links in editorial contributions would generate commission claims for the publisher constitutes essential information within the meaning of Paragraph 5a of the UWG.
In the absence of labelling, the average consumer expects that links in editorial texts would otherwise be neutral, independent statements. Pure links are not obvious as advertising, as is the case, for example, with banner advertising.
A lack of labelling and thus deception of the user could lead to an influence on his purchasing decision, which is anti-competitive in this situation.
Warnings will follow
It is to be expected that warnings on this issue will increase in the coming months and that other courts will join the quite convincing case law. The first judgments, in conjunction with the influencer case law, provided quite precise indications as to when and how not only things such as product recommendations, but also paid links must be marked.
I can give comprehensive advice on this issue and, through my more than 15 years of professional experience in the operation and construction of brand agencies, not only give sensible advice from a business point of view, but also to review, prepare or optimise relevant contracts. .
Marian Härtel is a lawyer and entrepreneur specializing in copyright law, competition law and IT/IP law, with a focus on games, esports, media and blockchain.
