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The Higher Regional Court of Bamberg (OLG) has narrowed the scope for large online marketplaces in implementing the Digital Services Act (DSA). Ruling on a complaint by the Bavarian Consumer Association, it decided that several frequently used practices on Amazon’s German platform violate European consumer protection law.

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The judgment, now published, concerns core areas of platform use: the transparency of algorithms in sorting search results, the legal and practical barriers to reporting potentially illegal offers, and the ease of finding options to de-personalize recommendation feeds (Case No.: 3 UKl 13/25 e).

The judges focused on the transparency obligations for recommendation systems under Article 27 of the DSA. The platform operator sorts search results by default according to the category “Recommended” or “Amazon presents”. While it refers to general influencing factors such as customer actions or product information on help pages, the Senate considers this to be too vague. It emphasizes that a mere exemplary listing of criteria is insufficient. Consumers must be able to easily understand which factors significantly determine the selection and how they are weighted against each other, especially with dynamic weightings. Vague collective terms like customer actions leave the user uncertain whether personal history, aggregated user data, or third-party sales are meant.

Hurdle-free De-personalization of Feeds

The judges also made no concessions regarding users’ right to feed systems without profiling. The DSA requires very large online platforms to offer an easily and immediately accessible option to deactivate tracking-based advertising and product recommendations. The marketplace operator hides this setting deep within the account settings, which can only be accessed after logging in with an email address and password. According to the ruling, this contradicts the requirements for easy accessibility, even without logging in. Since the browsing and search behavior of unregistered persons is also used to display product highlights, the de-personalization option must be readily available.

The Senate also dealt another blow to the design of the reporting procedure for illegal content in accordance with Article 16 of the DSA. Anyone wanting to report suspicious or dangerous goods on Amazon encounters a link labeled “Report a problem with this product”. The judges deemed this wording insufficient and misleading. From a consumer perspective, the term suggests that it only concerns complaints, quality defects, or transport damage, not the reporting of criminal, counterfeit, or otherwise illegal offers.

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The court also deemed the practice of making every report of a product or user review mandatory upon logging into a customer account unlawful. The DSA stipulates that reporting mechanisms must be open to all individuals and entities. A registration requirement acts as a deterrent and creates unnecessary hurdles. The platform’s argument that the login requirement serves to prevent spam and bots was not accepted by the OLG. The protection of traders and systems from abuse must not lead to blocking access to legally guaranteed reporting procedures for anonymous or unregistered informants.

The lawsuit was also successful regarding the provision of information about the design of algorithms, moderation tools, and internal complaint procedures in accordance with Article 14 of the DSA. While a platform does not have to bundle all details in a single continuous text, the court emphasizes that the division of information must not undermine transparency. Those who offer basic explanations on content moderation in the General Terms and Conditions (GTC) but outsource procedural details on the complaint process without clear cross-references violate the principle of easy accessibility.

However, the Senate believes that the compact GTC summary requested by consumer advocates does not necessarily have to be at the very top of the regulations. If the link to the short version is clearly visible or can be directly accessed via the website’s footer menu and standard search engines, that is sufficient.

The OLG made it clear that the violated transparency and reporting provisions of the DSA are genuine consumer protection rules within the meaning of the Unfair Competition Act. Due to the fundamental importance of the interpretation issues, it has allowed an appeal to the Federal Court of Justice.

(mma)

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