In the dispute over the admissibility of the internet advertising blocker "Adblock Plus", Axel Springer AG has achieved a partial success against the Cologne-based provider of the software, Eyeo GmbH. In a judgement of 24-06-2016, the 6th Civil Senate of the Higher Regional Court of Cologne partially amended the judgement of the Regional Court of Cologne dismissing the action in favour of the plaintiff.
The software can be downloaded free of charge by Internet users. It prevents certain advertising content from being displayed on Internet pages. With the help of filter rules, server paths and file characteristics of advertising providers are identified and blocked ("blacklist"). In addition, it is possible to have exceptions to the filters included in a so-called "whitelist" under certain conditions. By default, the programme is configured to allow "some non-intrusive advertising" and display it to the user. From the companies on the "whitelist", the defendant - from larger website operators and advertising network providers - receives a revenue share.
The applicant considers the programme to be an unfair restraint of competition. It is of the opinion that the defendant is hindering its business model in a targeted and harmful manner by eliminating advertising. The ad blocker separates the content of the website and the advertising, which is comparable to tearing down billboard advertising. However, the advertising secured the financing of the media offer, which was known to the users and tacitly approved by them. Since the defendant generates income by concluding whitelisting contracts, it has an interest in maintaining advertising.
The 6th Civil Senate of the Cologne Higher Regional Court partially followed the plaintiff's argumentation. It does not consider the blocking of advertising as such to be anti-competitive, but the payment model of "whitelisting" chosen by the defendant is: the software is inadmissible if and to the extent that advertising is only not suppressed according to predefined criteria and against payment of a fee ("whitelist").
The elimination of advertising in itself did not constitute a deliberate restraint of competition. The parties were indeed competitors because they were in competition for payments from entrepreneurs willing to advertise. An intent to harm on the part of the defendant could not be assumed. In contrast to the tearing down of posters, the defendant did not physically affect the supplier's product. Rather, the editorial content of the website and the advertising were delivered in separate data streams which remained unchanged as such. It was merely ensured in the user's reception area that the data packets with advertising were not even displayed on the user's computer. However, there is no claim that an offer is only used as it should be perceived from the sender's point of view. Freedom of the press also does not give the right to impose unwanted advertising on the user.
In the opinion of the Senate, the "whitelist" function, on the other hand, is an impermissible aggressive practice within the meaning of § 4a para. 1 sentence 1 UWG. The defendant was in a position of power due to the blacklist function, which could only be eliminated by whitelisting under its control. With this technically effective barrier, the defendant prevented the plaintiff from exercising its contractual rights vis-à-vis the advertising partners. The programme was not only effective vis-à-vis content providers such as the plaintiff, but also vis-à-vis their advertising customers. As a "gatekeeper", the defendant, through the combination of "blacklist" and "whitelist", had such a strong control over access to advertising financing opportunities that companies willing to advertise got into a blockade situation from which they then had to buy their way out. The fact that the programme would meet the wishes of many users for ad-free surfing on the internet would not change anything. As a result, the freedom of choice of companies willing to advertise would be considerably impaired. At any rate, larger website operators and advertising intermediaries would be forced to make payments. The fact that the position of power is considerable is shown by the example of large American internet groups which, according to the undisputed submissions of the parties, make considerable payments for "whitelisting".
According to the content of the judgement, the defendant may no longer distribute the programme in Germany or maintain versions already delivered, insofar as certain websites of the plaintiff are affected. However, the judgement is not legally binding. The Senate has allowed an appeal to the Federal Supreme Court because legal questions of fundamental importance are involved. Until the judgement becomes final, the plaintiff can only provisionally enforce the judgement against the provision of a substantial amount of security.
Previous instance: Regional Court of Cologne: Judgment of 29.09.2015, File No. 33 O 132/14
Cologne Higher Regional Court: Judgment of 24.06.2016, file number 6 U 149/15
Source: Press release of the Cologne Higher Regional Court, Dr. Ingo Werner (Press Secretary)
Goldberg Attorneys at Law 2016
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
