Thursday, 17 September 2020

Orth Kluth successfully enforces the obligation to identify affiliate links for BürgerGas with Finanztip

The Higher Regional Court of Dresden had ordered the well-known internet portal Finanztip Verbraucherinformation GmbH to cease and desist from unmarked commercial content and misleading statements (OLG Dresden, judgement of 05.07.2019, ref. 14 U 207/19). The internet portal uses affiliate links within its website and in its newsletter. These lead to commission income for the internet portal, so that the setting of the affiliate links was classified by the court as an unfair commercial act because there was no sufficient identification of this commercial content.

Despite the journalistic-editorial contributions, the OLG Dresden demanded a separation of editorial contributions and "such contributions which primarily serve the purpose of advertising for a third-party company", namely the affiliate links. The OLG Dresden thus rejected the Internet portal's view that commercial links within editorial content were also subject to media privilege and could not be challenged under unfair competition law.

The court of first instance (Regional Court Leipzig, Case No. 5 O 2367/17) dismissed the action with reference to the media privilege. With the appeal against this, Orth Kluth had enforced the injunctive relief for his client BürgerGas before the Dresden Higher Regional Court.

The Federal Supreme Court (BGH) now rejected the internet portal's appeal against the non-admitted appeal (decision of 03.09.2020, ref. I ZR 145/19), so that the decision of the OLG Dresden is now legally binding. The ruling of the OLG Dresden specifically related to an electricity and gas price comparison calculator of the internet portal, but is also of importance for other internet providers for the duty to identify.

Orth Kluth has been advising BürgerGas for several years on the judicial and extrajudicial prosecution of competition violations in the energy sector.