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Adblock Plus: Third German court rejects claims against Eyeo

05 October 2015
On 29 September, the District Court of Cologne became the third court in Germany to issue a decision in relation to the trilogy of actions launched by large publishers against adblocking software Adblock Plus.
Adblock Plus: Third German court rejects claims against Eyeo

The court rejected publisher Axel Springer's action against Eyeo GmbH, the German company behind AdBlock Plus. In doing so, the Cologne court agreed with the courts of Hamburg and Munich which in April and May had already rejected parallel actions brought by other large publishing houses, among them RTL, ProSieben Sat.1 Digital and Handelsblatt.

The business practices behind AdBlock Plus are the subject of these proceedings. In particular, the plaintiff publishers allege that Eyeo is exploiting the popularity of its free open source software by asking advertisers for cash. Larger advertisers that want their ads to be "whitelisted" and reach their target public have to accept Eyeo's payment terms. They also accuse Eyeo of favoring affiliated advertisers. The publishers also question whether the community of volunteers which sets the criteria for whitelisting is really an independent voice of the public, as Eyeo contends. These and further allegations form the basis of unfair competition and antitrust claims against Eyeo's operation of AdBlock Plus.

The decision of the Cologne court has disappointed many following these legal developments. Before the oral hearing of 11 August that preceded the judgment, it looked as if the Cologne court would take a different stance than the courts of Hamburg and Munich and prohibit AdBlock Plus. In a statement issued before that hearing, the court had called AdBlock Plus "highly problematic" and voiced its opinion that the adblocking scheme could well amount to unfair competition. It had then become known shortly afterwards that the courts in the parallel proceedings in Hamburg and Munich both considered AdBlock Plus to be lawful – at least within the scope of the claims as formulated by the plaintiffs.

This seems to be the sticking point of the legal proceedings against AdBlock Plus: how to phrase the claims. These have been drafted very differently in all three proceedings. The large number of auxiliary claims in the Munich proceedings shows how difficult it is to mold the legal objections against AdBlock Plus into a definite and executable shape. It is not to be expected that any court would deem adblocking software unlawful per se, given that they are voluntarily and autonomously installed by users. The real objections of the plaintiffs lie with the complex business model behind AdBlock Plus and the high charges advertisers are obliged to pay. It may be lawful – but only as long as Eyeo does not cross the threshold of being a dominant market player, and only as long as there is real user autonomy. And autonomy also entails that the decisions on whitelisting are indeed made by an autonomous user community, as Eyeo contends. This is questioned by many.

The battle over AdBlock Plus will rage on. Axel Springer is considering an appeal, as are the other plaintiff publishers. Given that it is the first time that the legal framework for adblocking has been put before the courts, it is likely that the German Federal Supreme Court will eventually be called to rule on AdBlock Plus.

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