Amazon not liable for affiliate

Amazon is not liable for a breach of competition law on the website of an affiliate partner. The Higher Regional Court (OLG) Cologne has now confirmed this.

The background of the dispute was a post on the website www.schlafbook.de, which is essentially concerned with the topics of sleep and mattresses. The posts contain essentially reviews of corresponding products and are generally furnished with affiliate links.

One of these posts contained a mattress comparison, whereby the product of the plaintiff mattress manufacturer had allegedly held the first place according to the heading. Below the heading, however, was an image of a competitor's product. The corresponding affiliate button led to an Amazon page on which the competitor's product was offered by Amazon.

The mattress manufacturer was of the view that the post on www.schlafbook.de was misleading and demanded that Amazon issue a declaration of discontinuance. Amazon replied to this that the website operators had been requested to remove all unlawful content and links. They complied with this request as well. However, the declaration of discontinuance was not issued. The first instance was unsuccessful

OLG Cologne denies liability for affiliate

The OLG Cologne dismissed the appeal of the mattress manufacturer by judgment of 11.02.2022 – 6 U 84/21.

The court first confirmed that between Amazon as a supplier of goods – here mattresses – and the plaintiff mattress manufacturer, there is a direct competitive relationship. The court also assumed that the design of the website www.schlafbook.de constitutes a breach of competition law, because the website is to be regarded as disguised advertising in a misleading manner.

However, Amazon is not liable for employees or agents. The reason for this is the lack of ability to exert influence on the advertising partner.

The conduct whose discontinuance is demanded must have been committed within the operational organization of the business operator. While independent enterprises may also be regarded as agents, there is lacking in the present case an integration of the advertising partner into Amazon's operational organization. This is because Amazon leaves the decision on whether and how to conduct the advertising entirely to the web partner. Thus the essential operations are not under the control of Amazon. The payment of a fee for a specific advertising success alone cannot lead to the conclusion that an independent entrepreneur is to be regarded as integrated into Amazon's operational structure.

Amazon's interest in unlawful advertising is neither evident nor demonstrated.

Conclusion

Although Amazon may ultimately have benefited from the misleading advertising website, the company is not liable for the breach of competition law. The court takes the view that Amazon, lacking influence over the affiliate, is not liable for its misleading advertising measures.