The Internet shipping giant Amazon uses advertising links on partner sites to lure potential buyers to its products – but it does not have to be responsible for problematic content on these sites. The Federal Court of Justice (BGH) in Karlsruhe ruled on Thursday that the prerequisites for liability were not met here. (Az. I ZR 27/22)
A mattress manufacturer had sued whose mattress appeared in a questionable ranking with links to Amazon. But he could only blame the site operator for this.
Fake reviews with affiliate links
The Amazon affiliate program has been around in Germany for around 20 years. Registered participants can set links to products offered by Amazon on their website. If a purchase is made, they get a commission. Depending on the product category and monthly turnover, this can be up to twelve percent. For example, the links labeled “Buy from Amazon” are called affiliate links. “Affiliate” is English and means partner.
The suing company bett1.de is bothered by the fact that such links can also be found in fake test reports and dubious product tips. After the hearing in November, company founder Adam Szpyt said that you couldn’t take the sales with you and not worry about whether the customer came from fraudulent sites.
Judges see no obligation at Amazon
According to the law, a company is liable for unfair business practices when they are committed “by an employee or agent”. That is understood very broadly, said the presiding judge Thomas Koch at the verdict. A constellation in which a self-employed person works for the company could also fall under this. But the prerequisites were missing here.
Amazon would have to have expanded its business operations for this – according to the legal formulation. According to the Supreme Court, that is not the case here. The website in question, a page dealing with the topics of sleep and mattresses, was designed by the “affiliate” at its own discretion. The links to Amazon are part of this product and are only set to generate income from commissions. “He does his own thing, so to speak,” said Koch.
Amazon has no influence at all. And the top civil judges do not see Amazon as having a duty to secure enforceable influence.
Participants are “responsible”
In fact, the Terms of Participation do not require Affiliates to link to Amazon. You may participate in other affiliate programs at the same time and also negatively discuss linked products. However, false or misleading information about products and services is prohibited. In the event of legal violations, Amazon reserves the right to take necessary measures – up to and including exclusion from the program. According to information from company circles, this requirement was adhered to in the BGH case and action was taken against the site operator.
An Amazon spokesman said: “We welcome the decision of the Federal Court of Justice, which confirms previous judgments in our favor. Participants in the Amazon affiliate program are responsible for the content of their website, including compliance with applicable laws.”
“We Fight Ghosts”
This is exactly what bett1.de had criticized. Szpyt’s lawyer from the lower courts, Jeannette Viniol, said in November that many test sites only exist because money can be made with the links. And Amazon gives its partners the longest possible leash.
With the highest court judgment from Karlsruhe, it remains the case that those affected can only take action against the site operator. According to Szpyt, however, this is as good as impossible – with the “fake test pages” the address in the imprint is then simply changed every few days. Sometimes the operator is based in the USA, then on Rügen, then in Singapore. “We fight ghosts.”
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