A live sale combines creator recommendation, purchase button and sales link. Review commercial purpose, platform design, ad transparency and misleading user journeys.
, Mag. Bernhard Brandauer, Rechtsanwalt
A live stream with an embedded purchase button is a distinct review setting. Creator recommendation, real-time communication, an affiliate or sales link and the concrete purchase interface work together in one process. A business therefore cannot review only the spoken advertising statement or only the button.
Section 2 UWG requires the concrete commercial statement and its effect on the transactional decision to be considered. Regulation (EU) 2022/2065 adds transparency rules for advertising on online platforms. Article 25(2) DSA expressly separates the prohibition on certain online interface designs from practices already covered by the Unfair Commercial Practices Directive or the GDPR. That boundary does not turn the DSA into a universal substitute for an unfair-competition assessment.
This article separates three questions: Is the commercial purpose of the sale recognisable? Does the design lead users toward a decision they might not have made with complete information? Which duties apply to the creator, seller and platform in their respective roles?
Before the live sale starts, it should be clear who sells the product, who funds the stream, who receives commission and who controls the purchase button. A creator may be a paid cooperation partner, an affiliate with a share of sales or the seller of their own products. The contractual questions differ, but each model creates an economic context that must be recognisable to the audience.
Section 2 UWG focuses on statements and their ability to trigger a transactional decision. In a live stream, spoken statements, on-screen notices, chat replies, product data, price information and the route to purchase therefore belong together. A notice in the profile or in a difficult-to-reach subpage cannot reliably determine the overall impression of the specific stream.
The distinction from static influencer advertising remains important. A recorded contribution with an affiliate link has a different timing and technical user journey from a stream in which a creator answers questions, asserts scarcity and highlights the button in real time. The legal assessment follows the actual process, not the label live sale.
The purchase button sits at the end of a decision chain. Before the click, the product, price, delivery information, recurring payment, restrictions and contracting party may appear in several places. The review should record which information was visible immediately before the button and which information required further steps.
A clear button label does not answer every question about misleading conduct. “Buy now” may name the purchasing action while price, duration or important restrictions remain unclear elsewhere. Conversely, a neutral label can conceal the payment character where the stream presented only a free participation or registration. The overall impression of the concrete process controls.
A business should test the interface in several typical user situations. These include entry directly from the stream, entry through the chat, a later visit to the product page and a purchase on a mobile device. Each route should be preserved with date, language, screen size and interface version.
Article 25(1) DSA addresses certain designs of online interfaces that materially distort or impair the ability of users to make free and informed decisions. In a live sale, the position of a purchase button, repeated highlights, difficult exit routes or different visibility of costs may therefore be relevant. The specific threshold and the role of the provider require separate assessment.
Article 25(2) DSA draws an express boundary: the prohibition in paragraph 1 does not apply to practices already covered by the Unfair Commercial Practices Directive or GDPR. This is not a general permission for manipulative design. The review may continue on another legal basis, including a misleading commercial practice under section 2 UWG. The source assessment for this article therefore keeps the exclusion separate from the question whether the concrete user journey is misleading.
A business should not approve its interface by saying that Article 25(2) excludes the DSA altogether. First clarify the provider role, service type, user group, concrete design and applicable special rule. The seller and creator must additionally review their own communication with the audience.
Article 26 DSA concerns advertisements displayed on online platforms. Users must be able to recognise advertising. Subject to the conditions of the provision, the provider must make clear that an advertisement is being shown, for whom it is shown and who paid for it. It must also provide information about the main parameters and, where relevant, changes to them. The duty depends on the service, presentation and role of the provider.
This platform transparency does not replace the section 2 UWG review of the live stream. A correct advertising label does not automatically answer whether a product description, price statement or artificial scarcity claim is misleading. Disclosure of the payer also does not cure unclear creator communication where the commercial purpose of the concrete sales process becomes visible too late.
The records should therefore separate two levels: platform label, payer information and ad-selection information on one side, and the content, tone, timing and purchase incentive of the stream on the other. This shows which person or business controlled each item of information.
Live sales often create time pressure. Statements such as “only during this stream”, countdown displays, limited quantities or repeated prompts can influence a decision. These elements are not unlawful merely because they are used. They must, however, be accurate, match the stock actually offered and remain understandable throughout the process.
The chat deserves its own review. A creator may answer questions about price, delivery or availability. A platform or business may highlight, hide or automatically sort comments. The legal assessment needs to show which answers were given and which information thereby became visible before the purchase.
Preserve the stream recording, chat, overlays, product page and purchase route on one timeline. Record when stock, price, link destination or button wording changed. A later correction may be useful for the future, but it does not replace reconstruction of the original user journey.
The contract and briefing should reflect the roles of everyone involved. They should cover product responsibility, price approval, statements about stock and delivery, disclosure, affiliate commission, chat moderation, maintenance of the purchase button and response to technical or legal challenges.
Approvals must relate to the version actually used. A business should not review only a script where the creator speaks freely and the purchase interface can change during the stream. A checked list of permitted statements, clear limits for spontaneous claims and an accessible person for corrections are practical safeguards.
The existing reviews of influencer disclosure and paid placement and ranking address adjacent issues. The live sale remains distinct because real-time interaction and the immediate purchase route converge.
When a challenge arrives, first secure the unchanged recording, chat, screen versions, purchase button, product data and agreements. Add publication time, platform account, audience, device view, link destination, price changes and the names of people who approved changes.
The legal review should separate content from responsibility. A challenge may concern the seller statement, creator communication, platform interface or several levels together. The review of aggressive commercial practices can help classify pressure, influence and the concrete decision circumstances. The article on standing under section 14 UWG addresses who may pursue an unfair-competition violation.
For proof of the actual sequence, an organised chronology is more valuable than a large number of isolated screenshots. The article on documenting a test purchase and evidence chain explains how source, time and unchanged versions can be brought together.
Not automatically. The notice must be assessed together with the format, purchase button and later overlays. The commercial purpose and material purchase information must remain recognisable before the relevant decision.
No. The button is assessed with all information visible at the relevant point. A neutral label can be problematic where it conceals payment or contract formation. A clear label does not cure other misleading statements.
No. It excludes certain practices already covered by the Unfair Commercial Practices Directive or GDPR from the prohibition in Article 25(1). It is not a general permission. A separate review under the applicable unfair-competition or data-protection rules remains possible.
The specific Article 26 transparency duties apply to the relevant provider under the conditions of the provision. They do not create a general claim by every party to full algorithm disclosure. The review should identify platform role, advertising, payer and main selection parameters.
Organise cooperation, consideration, disclosure and approval.
Separate advertising, ranking context and evidence on platforms.
Record pressure, influence and concrete decision circumstances.
Classify standing and possible claims under section 14 UWG.
Secure source, timing and unchanged user journeys in a traceable way.
Record claim, audience, evidence and qualifications in a structured way.
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