Affiliate marketing has become an established business model and is very popular on the internet. In addition to the product presentation on various online platforms, the advertisers receive a share (commission) if the advertised product is purchased via their personalised affiliate link. This link thus points to external products and thus promotes third-party sales through advertising on a success commission basis. Therefore, under certain conditions, affiliate links must be clearly marked in accordance with the advertising labelling regulations.
Affiliate links must always be marked if their advertising character is not clearly evident from the circumstances of the online presence. In particular, this is the case if the links are placed in predominantly editorial contributions. If the advertising is not marked, the links could be mistakenly regarded by the user as part of the editorial content. Advertising labelling is also required if the advertiser compares different products using certain criteria, but the products are paid for based on success.
How to correctly label affiliate links?
The advertising labelling must be sufficiently transparent, comprehensible and clear.
Correct labelling of affiliate links is done by adding the word “advertisement”, “advertising” or “advertising partner” directly and clearly visible. This explicit reference is legally secure.
If there are limited display options, the affiliate links can also be marked with an asterisk (*). In this case, a clearly visible notice with the meaning of the asterisk must be placed on the website so that even an inexperienced and uninformed user understands what such a link means. However, it has not been conclusively clarified by the courts whether this variant is sufficient as a marking.
According to a ruling of the Federal Court of Justice (BGH) (ruling of 6 February 2014 – I ZR 2/11), designations as “affiliate link”, “sponsored by”, “sponsored” or “supported by” are not sufficient, as they are fuzzy indications and the meaning of the content could therefore not be understood correctly.
If there is no corresponding and unambiguous indication that affiliate links are advertising, a warning letter for misleading and surreptitious advertising may be sent to the addressee, which may result in high fines and injunctive relief. In order to be legally secure with affiliate links on the internet, they should be clearly marked as advertising.