From the Berlin Regional Court there is a new round in the matter of labeling advertising on websites. Last year, there were numerous rulings on influencers, which now make it quite clear what must be marked on Twitter, Twitch or YouTube. But there were also other judgments on issues of marking affiliate links, which you can also find on my blog via the search.

In principle, it was previously the case that advertising must be marked if it is unclear whether it is advertising. This is not always clear with affiliate links, especially if they are also masked, for example, by short URL services such as bit.ly etc.

In a legally binding ruling, the Berlin Regional Court has now clarified that Amazon links that generate revenue for the website operator as part of the Amazon affiliate program (i.e. are ultimately affiliate links) must be marked.

The following sentence was also not sufficient for the district court:

“We hope you enjoy our product recommendations. Just so you know, XYZ gets a small percentage of the sales you see linked here.”

Thus, the Board stated that it is not sufficient for a consumer to know that the website in question would logically be commercial.

Based on the protective purpose of § 5a para. 6 UWG to provide consumers with all the information they need to make a business decision and to give them the opportunity to react accordingly, it is not sufficient, however, that the consumer has an abstract idea that a commercial purpose is being pursued in some way with the product recommendations. 

Nor was the blanket statement sufficient for the court:

It is also not sufficient that he recognizes that the sales of the products of the online mail order company Amazon should be promoted. Rather, it is necessary that he is given the opportunity to also recognize that the operator of the website used by him receives a fee if he buys the item linked in the product recommendation.

At issue was a listing of items such as “55 great gifts, all of which will make your wife’s love beat faster and can be purchased with an Amazon gift card” of which the individual items were linked to with a ref link.

It is not necessary for the entrepreneur to make this clear if the consumer can recognize at first glance and without any doubt from the context that the action is based on a commercial purpose. Only in this case is it unnecessary to point this out separately.

This is not the case here. It is true that consumers may be aware in principle that freely accessible Internet sites with editorially presented articles are financed by advertising. He may also be familiar with the concept of affiliate advertising.

However, it does not assume that an editorial contribution itself – as in the present case – serves as financing via links to affiliate partners. Even if the operator of a website […] refrains from advertising clearly marked as such (banner advertising), the targeted public does not expect that financing is provided in any other way through advertising. In particular, it does not assume that this is done via links to affiliate partners.

Since it depends on the specific commercial purpose of the product recommendations, it is not sufficient that the traffic could assume from the headline of the […] article that it would be forwarded via links found in the product recommendations to a page where it could purchase the recommended products with an Amazon voucher, and thus knew that the competition of another company was promoted with the product recommendations. Thus, he was not yet aware that the website operator was simultaneously promoting his own competition with the product recommendations.

In the ruling, the court also gives instructions for the design of the notice

In any case, the notice must be sufficiently clear so that, from the perspective of an average member of the consumer group addressed or affected in each case within the meaning of Section 3 (3) of the German Civil Code (Bürgerliches Gesetzbuch) 4 sentence 1 UWG, there is no doubt as to the existence of the commercial purpose; it must appear at first glance or be clearly and unambiguously recognizable.

The designation “Shopping” to be found above the article in a gray field in white writing in small letters is not to be understood as a clear and unambiguous reference to the affiliate links or a possible commission to be paid. 

Irrespective of the fact that this reference is also small and inconspicuous in white writing on a gray background and easily takes a back seat to the headline “18 ingenious things,” it merely suggests – even if it were perceived – that this is an editorial section with the designation “Shopping”. 

However, this merely suggests that – just as sources of supply for products presented in the traditional media are indicated – sources of supply are also indicated for products presented on the In¬ternet. However, it cannot be inferred from this that commission payments are made for this.

Also the reference below the headline – printed in bold – does not meet the requirements for making it recognizable. It is not only set in small type, which alone makes it difficult to perceive. Moreover, it starts with the sentence “We hope you like our product recommendations” and even tends to distract from the statement “XZZ receives a small percentage of the sales you see linked here” which can only be found in the second sentence after the colon. 

Even if the ruling does concern specific types of integration, the statements are likely to be applicable to all text links that in reality, in the middle of an editorial text, link to partner sites or that do not clearly represent that commission is being granted due to the way they are designed (such as “And here you can buy the product we just reviewed….”).

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