OLG Bamberg (Higher Regional Court) rules against TikTok: DSA obligations on de-personalisation options and reporting procedures are consumer-protective and enforceable by way of a representative action

‍1. Background

The judgment of the OLG Bamberg of 18 March 2026, case no. 3 UKl 5/25 e, is of interest with regard to both admissibility and the merits and breaks new legal ground in part.

The Digital Services Act (DSA) is enforced primarily under public law. Responsibility lies with the national Digital Services Coordinators and, in the case of very large online platforms, the European Commission (Art. 51, 56 DSA). Alongside this, however, there is also a civil-law level:

• First, the German legislator has classified the DSA as a consumer protection law in Section 2(2) No. 57 UKlaG, thereby implementing Annex I No. 68 of the Representative Actions Directive. Consumer associations may therefore, in principle, pursue infringements by way of an action for injunctive relief. Whether this applies to each individual DSA obligation had so far been unresolved: Section 2(1) sentence 1 UKlaG requires action in the interest of consumer protection, so the provision relied upon must have a consumer-protective character.
• Second, the DSA does not preclude civil-law claims for injunctive relief by private parties under national law. In particular, the assertion of unfair-competition claims for injunctive relief via Section 3a UWG comes into consideration, provided that the infringements of the DSA (also) constitute “market conduct rules”.

In substantive terms, two obligations under the DSA lie at the centre of the case:

• Art. 27 and Art. 38 DSA concern “recommender systems”. These are the systems colloquially often referred to as “algorithms”, which suggest certain information to platform users or prioritise such information. Pursuant to Art. 38 DSA, very large online platforms must provide at least one recommendation option that is not based on profiling, and must design the switching function to be “directly and easily accessible” (Art. 27(3) sentence 2 DSA).
• Art. 16 DSA further obliges platforms and hosting providers to maintain an easily accessible and user-friendly procedure through which users can report allegedly illegal content. This is a specific “notice-and-action” procedure that obliges platforms to confirm receipt of the notice without undue delay, to process the notice promptly and to inform the notifying party of the decision.

The relevant legal provisions contain several indeterminate legal concepts that the Senate had to apply and give contour to in its decision.

2. Facts

The claimant was the Bavarian Consumer Advice Centre (Verbraucherzentrale Bayern), entered on the list of qualified entities; the defendant was the operator of the well-known short-video platform TikTok, a “very large online platform” within the meaning of Art. 33 DSA. The dispute concerned the web version alone.

On its platform, the defendant maintains a non-personalised feed. Users reach this setting via a right-click on a video or product and the “Manage feeds” field that then appears. The function cannot be reached via the menu that opens on clicking the three dots in the upper right corner of a post; this menu contains only the items “Auto-scroll”, “Not interested” and “Report”.

The procedure for reporting illegal content opens via the “Report” button. In the ensuing selection menu, only the item “Report illegal content” opens an input form with the option to provide contact details. The remaining categories present the user with a drop-down menu offering numerous options (e.g. “Hate and harassment”) and end with a notice and the “Submit” button. The association issued a warning letter; the defendant did not provide a cease-and-desist declaration.

3. The Decision

a) Standing to sue and consumer-protective character

The court first affirms, at the level of admissibility, the association’s standing to sue. The legislator, it held, designated the DSA in Section 2(2) No. 57 UKlaG “as a consumer protection law without restriction” (para. 68).

Whether an association exceptionally lacks standing where it relies on a provision without consumer-protective content was left open by the Senate – in such a case there would, as a rule, already be no action in the interest of consumer protection under Section 2(1) sentence 1 UKlaG (para. 69). This question did not matter, because the Senate attributes a consumer-protective character to both Art. 27 and Art. 38 and Art. 16 DSA.

The de-personalisation procedure, it held, serves the data protection of users – a large proportion of whom are consumers – and the management of systemic risks. In this respect, the court states that the significance of de-personalisation “can hardly be underestimated from the perspective of consumer protection” (para. 70). Contrary to a view held in the literature (Steinrötter, MMR 2026, 3), the fact that Art. 38 DSA concerns only “very large online platforms” does not preclude this. The provision must not be viewed in isolation but stands in connection with Art. 27 DSA and supplements it. Accordingly, the relevant obligation follows from Art. 27(3) sentence 2 DSA. It would be contradictory to classify the transparency of recommender systems under Art. 27(1), (2) DSA as consumer-protective but not the switching option under Art. 27(3) (para. 72).

Art. 16 DSA, too, serves consumer protection “beyond a mere ancillary or reflexive effect”. The purpose of the provision is also to keep the platform free of illegal content, which is why an effective reporting procedure also serves to protect users (and thus consumers) from illegal content.

b) Recommender system: directly, but not easily accessible

The function for deactivating personalisation is, admittedly, “directly” accessible within the meaning of Art. 27(3) sentence 2 DSA, because the right-click opens, on every displayed video and product, a menu with the “Manage feeds” field from which deactivation can be reached (para. 97).

However, it is not “easily” accessible. For this assessment, the Senate transfers the standard of Section 312k(2) sentence 4 BGB and Article 246d(2) EGBGB: the average consumer must be able to find the function in the simplest possible way and without considerable effort where he typically expects it (para. 100). This is lacking, because the “Manage feeds” field appears only on a right-click on a video or product. On clicking the three dots in the upper right corner of a post – a button familiar to the user from numerous programs and which he regularly turns to in order to change functions – a different menu opens instead, which does not contain the function (para. 101).

This is particularly confusing because this three-dot menu contains, in “Not interested”, an item that likewise influences feed control and has the effect that fewer similar contents are displayed in future. The user therefore does not assume that he must carry out the de-personalisation of his feed in an entirely different menu.

c) Reporting procedure: easily accessible, but not user-friendly

By contrast, the reporting procedure to be maintained under Art. 16(1) sentence 2 DSA was, in the Senate’s view, indeed “easily accessible” but not “user-friendly”. A reporting procedure is user-friendly if it can be completed without inconvenience; selection menus that require the user to make a legal assessment of the content are admissible, but must themselves be designed in a user-friendly manner (para. 110).

This was lacking in the case decided. In the drop-down menu, only the item “Report illegal content” opens the path under Art. 16 DSA. It stands, without emphasis, in the midst of the other buttons, without it being made apparent that it differs qualitatively. The user cannot discern that only through this item does he trigger an official notice-and-action procedure under Art. 16 DSA – which carries all the more weight given that several of the other items (“Hate and harassment”, “Fraud and scams”, “Counterfeits and intellectual property”) likewise concern illegal content within the meaning of Art. 3(h) DSA (para. 111).

In practice, it therefore depends on chance which button the user presses, and accordingly also whether he triggers the formal procedure under Art. 16 DSA (para. 112). Even a user familiar with the requirements of Art. 16 DSA would, where applicable, have to abort the reporting process and try out further items; in any event, the far more frequent case, according to the Senate, is that the user does not even notice that he has not triggered a formal procedure (para. 112).

In this connection, the Senate rightly emphasises that a voluntary, parallel reporting procedure for breaches of the community standards is admissible in addition to the procedure under Art. 16 DSA, but does not replace it and must not allow it to recede into the background.

4. Assessment and practical guidance

The decision contains, to begin with, the first statement by a higher regional court on the consumer-protective character of Art. 16, 27 and 38 DSA. The view taken by the court – in part in deliberate contradiction to a view held in the literature – is well-reasoned and persuasive, but may become the subject of the admitted appeal on points of law.

For collective enforcement, the decision opens a path alongside supervision by the authorities. For the time being, it remains open in this respect whether Section 2(2) No. 57 UKlaG is to be subject to a teleological reduction insofar as an association relies on DSA provisions without consumer-protective content. The Senate rightly intimates that, in such cases, the interest in consumer protection under Section 2(1) sentence 1 UKlaG is likely already to be absent, but did not have to decide the question.

In substantive terms, the Senate gives contour to the indeterminate legal concepts of the provisions applied. It makes clear that mandatory functions under the DSA must be findable where users expect them. Mere reachability via atypical navigation does not suffice if an obvious operating path – such as the three-dot menu – precisely does not contain the function. Menus existing side by side with a similar appearance can impede accessibility rather than ensure it.

Also worthy of approval is the view that the reporting procedure under Art. 16 DSA must be clearly distinguishable from voluntary procedures – such as for reporting breaches of community standards: if only one of several categories presented as equally ranked leads into the formal procedure, user-friendliness clearly suffers. The “notice-and-action system” of Art. 16 DSA should therefore, in practice, be clearly marked and should not recede behind voluntary reporting channels.