Recommendation Parameters, Terms Transparency and the Report Button: OLG Bamberg Clarifies DSA Obligations for Online Marketplaces

‍1. Background

Bamberg is becoming the de facto central court for DSA association claims. The reason is a two-fold concentration of jurisdiction: under the UKlaG, actions against defendants without a domestic establishment are decided at first instance by a court of appeal (§ 6(1) sentence 1 no. 2 UKlaG in conjunction with § 13a(1) GVG), and within Bavaria this jurisdiction is consolidated at the OLG Bamberg pursuant to § 2 GZVJu Bavaria. Within a matter of months, the Third Civil Senate has issued several landmark DSA rulings – on dark patterns under Article 25 DSA (judgment of 4 February 2026 – 3 UKl 8/25 e), on recommendation systems and reporting mechanisms (judgment of 18 March 2026 – 3 UKl 5/25 e), and now on the transparency obligations of an online marketplace. In addition, the Bamberg Regional Court has clarified the requirements for advertising labelling under Article 26 DSA (judgment of 11 March 2026 – 1 HK O 19/25).

The case concerns four sets of obligations. Article 27 DSA requires providers of online platforms to set out, in their terms and conditions, the main parameters of their recommendation systems and the reasons for the relative importance of those parameters. Article 38 DSA additionally requires very large online platforms (VLOPs) to offer at least one option for each recommendation system that is not based on profiling. Article 14 DSA governs the mandatory information on content moderation (paragraph 1) and the compact summary of the terms and conditions (paragraph 5). Finally, Article 16 DSA requires an easily accessible and user-friendly notice and action mechanism for illegal content.

2. Facts

The claimant was a consumer protection organisation listed in the register of qualified entities; the defendant was the operator of an online marketplace designated by the European Commission on 25 April 2023 as a very large online platform (VLOP) within the meaning of Article 33 DSA.

Five design elements were at issue: (1) the description of the sorting option on a help page linked from the terms and conditions; (2) the de-personalisation setting, which was only accessible after logging into a customer account; (3) the content moderation information distributed across two clauses of the terms and conditions; (4) the placement of the link to the terms and conditions summary; and (5) the reporting mechanism, which was initiated via a button labelled “Report a problem with this product” and required customers to log into their account.

The claimant sent a cease-and-desist letter in November 2024; the defendant did not provide an undertaking to cease.

3. The Decision

The Senate largely upheld the claim. The applications regarding the recommendation parameters, the content moderation information and the reporting mechanism were successful; those relating to the summary of the terms and conditions and the de-personalisation option were dismissed.

a) Jurisdiction and standing

In addition to affirming its subject-matter, international and local jurisdiction, the Senate also confirmed the claimant’s standing to bring all of the applications. A teleological reduction of § 2(2) no. 57 UKlaG was not required, since Articles 14, 16, 27 and 38 DSA all serve the purpose of consumer protection “beyond a mere incidental or reflex effect”. For Article 14(1) DSA the Senate relies on Recital 45; for Article 16 DSA, it points to the function of the reporting mechanism within the framework of the liability privilege under Article 6(1)(b) DSA.

b) Recommendation systems: the weighting must be disclosed

Article 27(1) DSA requires providers of online platforms to set out, in their terms and conditions, the main parameters of their recommendation systems in clear and plain language. Paragraph 2 gives further detail: at minimum, providers must identify the criteria that are most important in determining the information recommended to users (point (a)) and explain the reasons for the relative importance of those parameters (point (b)). This covers what is colloquially referred to as an “algorithm” – in the present case, the logic by which a marketplace determines the ranking of its search results.

For its default sorting option, the defendant had identified two main factors: customer actions – for example, how frequently an item had been purchased – and information about the item, such as title, price and description. It also noted that delivery speed, availability and costs could be relevant. As to why the two main factors were decisive, it stated that they provided the best indications of what the user wished to purchase.

Whether that list met the requirements of Article 27(2)(a) DSA the Senate left open, as the description failed on point (b) in any event. A party required to explain the reasons for the relative importance of parameters must first set out their relationship to one another – otherwise the explanation has no reference point. That was precisely what was missing here: the defendant did not itself assert that it had disclosed the relative weighting of the factors. The statement about the best indications of purchase intent reveals neither the relationship between the parameters nor the reasons for it.

The defendant raised two objections. First, it argued that weighting could not be presented clearly and plainly because its system weighted parameters dynamically – the relative importance depended, for example, on aggregated data on the attractiveness of individual products, which in turn reflected country-specific trends. Second, it invoked the protection of its trade secrets: the disclosure of the design, logic and functioning of algorithmic systems was, under Article 40(3) DSA, reserved exclusively for the Commission and the Digital Services Coordinator.

The Senate accepted this only in part. A provider is not required to give fixed percentages where weighting is variable, and neither the algorithms themselves nor the weighting in individual cases need be disclosed. What must be indicated, however, is the method by which the relationship between parameters is determined. Users should be able to understand the basic functioning of the system, and a mere enumeration of parameters does not achieve that. How detailed the required disclosure must be depends on the circumstances of the individual case; what is not acceptable in any case is to present the relative importance not even in outline.

c) Content moderation information

Under Article 14(1) DSA, providers must include in their terms and conditions information on the restrictions they impose on users' content. This covers all policies, procedures, measures and tools used for content moderation, including algorithmic decision-making and human review, as well as the procedural rules of the internal complaint-handling system. That information must be provided in an easily accessible form.

In clause 7 of its terms and conditions, under a heading relating to reviews, comments and other content, the defendant described which content was prohibited and reserved the right to remove or edit it. How it would proceed in doing so was not explained, nor was there a reference to any explanation elsewhere. The actual information was accessible via a link at the end of clause 19, which was headed with a reference to the procedure for reporting illegal content. The link itself indicated that it was for reporting a problem with a product, content or a product detail page.

Whether the linked help page could even be regarded as forming part of the terms and conditions within the meaning of Article 3(u) DSA the Senate left open. The information had not been easily accessible in any event. The standard is the average internet user, who must be able to find and access the information without significant effort; links must therefore be labelled and embedded in a way that clearly guides the user to them.

The perspective the Senate adopts is noteworthy. Easy accessibility is not primarily for the benefit of users who know about the obligation under Article 14(1) DSA and are therefore specifically looking for it, but for the far larger group of users who are unaware that such information exists at all. A user who wishes to write a review and therefore reads clause 7 has no reason to scroll to the end of the terms and conditions. And a user who does reach that point will not feel addressed by a heading about reporting illegal content when they are concerned with the limits of permissible reviews. The label on the link was equally unhelpful, as it indicated a problem with a product – yet a review may also be objectionable even where it is positive, for example if it contains defamatory passages.

d) Summary of the terms and conditions

Under Article 14(5) DSA, very large online platforms (VLOPs) are subject to a further obligation: they must provide a concise, easily accessible and machine-readable summary of their terms and conditions, including the available redress mechanisms. The background is the well-known experience that users accept extensive terms without reading them; the summary is intended to be read at least.

The summary was accessible via three routes: through the “Legal notices” submenu, immediately below the link to the full terms and conditions; via a link within the terms and conditions themselves; and through standard search engines. The parties were in dispute as to whether the link within the terms and conditions had been positioned at the beginning or the end at the relevant time.

That dispute was ultimately immaterial. In the Senate's view, Article 14(5) DSA does not require the summary to be linked from within the terms and conditions. Recital 48 states that the summary should “additionally” be made available, which suggests it may be a standalone document. The only question that matters is whether users can find it where they would expect to find it. The entry in the “Legal notices” submenu achieves that and may in fact serve the purpose of the provision even more effectively than a link in the terms and conditions: a user who must first open the terms and conditions to learn of the existence of a summary will often not take that step at all.

e) Reporting mechanism: the label and the login requirement

Article 16(1) DSA requires hosting service providers to establish a mechanism through which any individual or entity can notify them of the presence of specific items of information that the notifier considers to be illegal content. The mechanism must be easy to access and user-friendly. Its significance extends beyond users' interests: a sufficiently substantiated notice establishes the provider's actual knowledge under Article 16(3) DSA, triggering its obligation to act if it wishes to retain the liability exemption under Article 6 DSA.

Each product page featured a link labelled “Report a problem with this product”. Clicking it produced a message stating that submitting a report required the user to log into their customer account. For customer reviews, there was also a “Report” button with four selectable options; after submitting, the user was likewise redirected to the login page. In the footer of the website, the defendant additionally pointed to the possibility of reporting illegal content – however, that link led only to an information page.

The Senate identified two shortcomings. The first concerns the label on the button. By its wording, the Senate found, it indicates a problem with the product itself – for example a defect or fault. An average user would not categorise offensive content on a product page as a “problem with the product”, even though such content may equally constitute illegal content within the meaning of the DSA. The defendant’s argument that the alternative wording “illegal content” would deter legal laypeople who felt unable to assess legality was countered by the Senate with the observation that the defendant itself uses precisely that term in the footer of its website. The Senate did not prescribe any specific wording; the room for design choices remains wide, but the label must convey the nature of the underlying procedure. The clearly labelled footer link did not compensate for this shortcoming, as it was neither located close to the content to be reported nor capable of initiating the procedure.

The second concerns the login requirement. The mechanism under Article 16 DSA is available not only to users of the platform but also to outside third parties – and therefore a fortiori to users without a customer account. The defendant considered the registration requirement unobjectionable: it required only a name and email address – no more than the information that Article 16(2)(c) DSA already provides for in a notice – and the account could afterwards be easily deleted. The requirement also protected sellers from mass reports submitted by automated programmes.

Neither argument persuaded the Senate. Whether a provider may require personal data at all it considered – without deciding the point – to be doubtful, since Recital 50 DSA presupposes the possibility of anonymous notices. Independently of that, the relevant perspective is that of the user wishing to make a report, who knows in advance neither what information registration requires nor how much effort it will take to subsequently delete the account. Both factors are capable of deterring a user from making a report.

f) De-personalisation

Article 38 DSA requires very large online platforms (VLOPs) to offer at least one option for each recommendation system that is not based on profiling. Where a platform operates more than one such system, the selection function must, pursuant to Article 27(3) sentence 2 DSA, be directly and easily accessible. Both provisions apply only where the platform operates a recommendation system based on profiling in the first place.

The setting for deactivating personalised recommendations was found in the account settings under “Manage your data” and was therefore accessible only after logging in. The claimant saw in this a disadvantage for users who do not have a customer account or are not logged in. The defendant countered that users who were not logged in received no personalised recommendations at all, making a selection option neither necessary nor meaningful for them.

The burden of proof for establishing the initial infringement rests on the association, and in the Senate’s view the claimant had not discharged it. A search results list is a recommendation system, since Article 3(s) DSA covers prioritisation resulting from a search initiated by the user. Profiling under Article 4(4) GDPR, however, requires the automated processing of personal data for the purpose of evaluating personal aspects. A user who enters a search term and is shown products in that category is not being evaluated in that sense.

4. Assessment and Outlook

The decision continues and extends the “Bamberg line”. The Senate had already confirmed the consumer protection character of Articles 16, 27 and 38 DSA in the TikTok case; Article 14 DSA is now added. The reasoning remains the same: what matters is not that consumer protection is the exclusive purpose of a provision, but that its protective effect extends beyond a mere reflex. The fact that certain obligations apply only to very large online platforms (VLOPs) does not, in the Senate's view, alter that assessment.

The focus is visibly shifting towards substantive standards: mandatory features must be findable where users expect them, and transparency disclosures must have verifiable content. The Senate's statement on parameter weighting goes beyond the current state of debate, because it imposes a disclosure obligation on providers even where systems are dynamic. How detailed the required disclosures on weighting must be, however, remains unclear and subject to a case-by-case assessment. It also remains open whether Article 16 DSA necessarily requires an anonymous reporting option, although the Senate has expressed clear doubts about the permissibility of mandatory personal data requirements.

As in the TikTok case, the Senate has admitted an appeal on points of law. A clarification by the Federal Court of Justice on the consumer protection character of DSA obligations is therefore in prospect.

5. Practical Guidance

For the design of online services and their terms and conditions, the decision yields several transferable standards:

• Transparency disclosures require verifiable content. A list of parameters without any statement on their relationship to one another is insufficient. Where weighting is dynamic, a description of the method used to determine it takes the place of specific figures.
• The location determines accessibility. Mandatory information must be placed where users look for it. Providers who distribute it across multiple clauses should at least include a clear cross-reference at every thematically relevant point.
• Labels must reflect the underlying procedure. Links and buttons are to be assessed not in isolation but from the perspective of a user who is unaware of the legal obligation and is therefore not specifically searching for it.
• Barriers before legally mandated procedures are critical. Registration and login requirements have a deterrent effect, because users cannot assess their scope in advance. Legitimate interests in preventing abuse do not justify them.

tl;dr: Under Article 27(2) DSA, providers of online platforms must not only identify the main parameters of their recommendation systems but also disclose their weighting; where weighting is variable, describing the method used to determine it is sufficient. Mandatory content moderation information must be findable where users expect it. The reporting mechanism under Article 16 DSA may neither be placed behind a misleadingly labelled button nor require users to create a customer account. The terms and conditions summary may be linked from outside the terms and conditions themselves.