Recommendation Systems
and reporting procedures
non-transparent
Recommendation Systems
and reporting procedures
non-transparent
of
Can an online marketplace make the reporting of illegal content contingent on a customer account? And is it sufficient for the marketplace to simply list the criteria it uses to recommend products without explaining how those criteria are weighted? The Bamberg Higher Regional Court has ruled in accordance with the law on key points regarding reporting procedures and recommendation systems.
A report button that only recognizes “problems with the product”
The case involves the operator of an international online marketplace where both its own products and those of third-party sellers are sold. On April 25, 2023, the European Commission classified the provider as a very large online platform within the meaning of the Digital Services Act, meaning that the strictest obligations under Regulation (EU) 2022/2065 apply to it. In the ruling itself, the provider remains anonymous; we are respecting this confidentiality.
By default, the results list for a product search was sorted by the “Recommended” option. On a linked help page, the provider explained that the selection was based primarily on “customer actions” and “information about the item,” because these provided “the best indication” of what customers wanted to buy. No weighting of the criteria relative to one another was provided there.
On each product page, users could also submit complaints via a “Report a problem with this product” link. Anyone who clicked on it was prompted to log in to their customer account first. For customer reviews, a “Report” button also led to the login page after selecting a reason and clicking “Submit.”
Consumer Protection Association Criticizes Lack of Transparency and Mandatory Login Requirement
A consumer protection association authorized to bring actions under the Injunction Act identified two violations of the Digital Services Act in this matter. First, while the help page explains individual factors of the recommendation system, it does not explain their relative importance to one another, as required by Article 27 of the DSA (transparency requirement for recommendation systems). Second, the reporting procedure for illegal content is neither clearly labeled nor easily accessible. The phrasing “Problem with this product” suggests, at most, defects in the product, but not illegal content such as offensive reviews. The requirement to log in first is an additional deterrent.
The provider defended itself by arguing that, due to the dynamic nature of the algorithms—which depend on numerous factors—it is not even possible to present a weighting in a meaningful way. Furthermore, more detailed disclosure would reveal trade secrets, which, under the Digital Services Act, are required to be disclosed only to government authorities anyway. The provider considered the login requirement reasonable because an account could be created in less than a minute and then deleted again; it also served to prevent automated reports of abuse. In support of this, the provider cited a ruling by the Hamburg Higher Regional Court, according to which creating a customer account during the ordering process does not constitute an unreasonable additional burden.
Bamberg Higher Regional Court: Reporting Procedures and Recommendation Systems Need to Be Improved
With the Judgment of July 29, 2026 – Case No. 3 UKl 13/25 e The division of the Bamberg Higher Regional Court responsible for class-action lawsuits under the Digital Services Act has granted the complaint on these two points. Due to a nationwide concentration of jurisdiction, the Bamberg Higher Regional Court rules on such class-action lawsuits against platform operators based abroad despite its designation as the first and only instance; this is therefore not an appellate decision. However, the Senate dismissed two other motions filed by the association, which concerned the availability of a profiling-free recommendation option and the placement of the link to the summary of the GTC.
Why the “Report” button Fails Because of Its Wording
In the opinion of the Bamberg judges, the ease of access to the reporting procedure under Article 16 of the DSA (reporting procedure for unlawful content) requires that the entry point into the procedure be clearly identifiable to users. However, from the perspective of an average user, the label “Report a problem with this product” suggests only defects in the product, not illegal content such as offensive or infringing information on the same product page. An additional link labeled “Report Illegal Content” in the website’s footer is insufficient because it is not located near the content in question and leads only to an informational page, not directly to the reporting procedure.
The judges expressly left open the question of whether the provider was even permitted to require personal data for a report; they considered this doubtful in light of the possibility of anonymous reports, as assumed in the recitals. Even if one were to assume this in favor of the provider, the requirement to create an account in advance would preclude easy accessibility. From the users’ perspective, it is not apparent in advance that only a name and email address are required for this purpose:
If he wants to initiate the reporting process, the message “To submit a report, log in to your account” may therefore cause him to decide against making the intended report.
The Hamburg ruling cited by the defendant regarding guest access during the ordering process is not applicable, as that case did not involve an obligation to ensure easy accessibility comparable to that set forth in Article 16 of the DSA.
How precisely does the weighting of the recommendation parameters need to be explained?
Regarding the second point of contention, the Senate clarified that the obligation under Article 27 of the DSA to explain the reasons for the relative importance of the most significant parameters necessarily requires that this relative importance be set forth in the first place. A mere listing of possible criteria is not sufficient for this purpose:
If the platform operator is unable to specify percentages due to the variable weighting of parameters, Art. 27(2)(b) of the DSA requires, at a minimum, information on how the platform provider determines the ratio.
The blanket assertion that the factors mentioned provide “the best indications” of customers’ purchasing intent lacks precisely this information. At the same time, the Senate confirmed that the provider is not required to disclose either the algorithm itself or case-specific weighting results; the protection of trade secrets remains intact because more detailed disclosure is required only to the competent authorities anyway. The sole requirement is that users be able to understand the basic functioning of the system.
Conclusion
For operators of very large online marketplaces, the ruling means that general statements regarding recommendation systems and reporting channels are no longer sufficient.
This leaves open the more fundamental question of whether a provider may at all require personal data when reports of illegal content are submitted. The Higher Regional Court expressly did not rule on this issue, even though it is of considerable practical significance—particularly because other provisions of the Digital Services Act regarding the prioritization of trustworthy whistleblowers are based precisely on their identifiability. Furthermore, as long as the Federal Court of Justice has not ruled on the appeal that has been granted, it remains uncertain whether the strict Bamberg line on mandatory login requirements will stand.
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