internet trade
Case at the BGH: Is Amazon liable for so-called affiliate links?
Amazon’s affiliate program works in such a way that registered participants can set links to products offered by Amazon on their own website. photo
© Karl-Josef Hildenbrand/dpa
For Amazon, it is part of the advertising concept: Thousands of people place links to the platform on their website – and earn money when someone buys something there. However, there can also be black sheep among the partners. Does Amazon have to take responsibility for this?
The online mail order company Amazon uses advertising links on partner sites to attract potential buyers to its products – but what if such partners work with dubious methods? An affected mattress manufacturer brought this question up to the Federal Court of Justice (BGH). He wants to ensure that Amazon is liable for problematic content on the partner sites. However, the judges are rather skeptical about this, as became apparent on Thursday at the hearing in Karlsruhe.
Amazon’s affiliate program works in such a way that registered participants can set links to products offered by Amazon on their own website. If a purchase is made, Amazon pays 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.
Accusation: links to Amazon also in fake test reports
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, without Amazon having to answer for it. You can’t take sales and don’t care if the customer comes from fraudulent sites, said company founder Adam Szpyt.
The specific procedure involves a ranking on a website in which the company’s mattress was listed as one of the “best mattresses” in 2019. However, it was not this mattress that was shown under the headline, but a competitor’s product, and on the linked Amazon page you could not buy the mattress from bett1.de, but the other mattress.
Amazon’s terms and conditions state that false or misleading statements about products and services are not permitted. However, the partners themselves are responsible for compliance. BGH lawyer Thomas Winter said that there were no instructions or content requirements, only the technical connection. He does not understand why bett1.de did not take action against the specific site operator.
Prosecutor: “We fight ghosts”
According to managing director Szpyt, however, this is virtually impossible because the address on the “fake test pages” is then simply changed every few days in the imprint. Sometimes the operator is based in the USA, then on Rügen, then in Singapore. “We fight ghosts.”
Szpyt’s lawyer from the lower courts, Jeannette Viniol, said there were only many test sites because money could be made with the links. And Amazon gives its partners the longest possible leash. BGH lawyer Ralph Schmitt spoke of “organized irresponsibility”.
According to earlier BGH decisions, however, liability is only an option if a company has taken on the risks by expanding its business operations. With the Amazon affiliate program, this is questionable, said the presiding judge Thomas Koch. According to the findings of the lower courts, the partners are free to design their own side. You are not obliged to set links to Amazon, you can also participate in other partner programs and negatively discuss linked products.
Complaints by bett1.de against Amazon had already been unsuccessful before several higher regional courts. The BGH is now continuing its deliberations, and the verdict is to be announced on January 26th. (Az. I ZR 27/22)