German court declares AdBlock Plus legal

At the conclusion of a four-year legal battle between German news publisher Axel-Springer-Verlag ("ASV") and Eyeo (who operate AdBlock Plus) the German Federal Court ("FCJ") have held that the operation of the browser addon is legal.

The addon prevents popups, banner adds, and "hover" adverts (the difficult to close video adverts with a fake "X" button). However, Eyeo allows advertisers to have their adverts displayed if they comply with certain (very stringent) standards. Unsurprisingly, the exception service is available for a fee. Once an advert is on the so-called "whitelist", it will be shown to even those users intent on blocking all ads.

ASV took exception to this business model, and litigated against Eyeo in 2014. The litigation was in competition law, though may more properly be described as an unfair competition suit. It was dismissed at first instance. On appeal the decision was partially reversed, and Eyeo was held to be partaking in "aggressive commercial practices" by filtering out advertisements of owners that did not pay the fee.

The court held that due to the sheer volume of users with AdBlock Plus installed, advertisers would be forced to pay a fee, or risk alienation from a significant portion of the market, and this constituted unfair competition.

That judgment was the subject of the instant appeal, where the court has not ruled in favour of Eyeo. Although the full judgment has not yet been released, from the FCJ's press release it is clear that the panel of judges did not deem there to be any unfair competition arising out of Eyeo's business model. They have explicitly stated that it is the end-users' decision whether or not to install an ad-blocking addon to his or her browser, and because of this autonomous decision any interference by Eyeo was only indirect.

The FCJ also disagreed with the finding of "aggressive commercial practices", especially as the claimant in the case is a news publisher, and not a consumer. It may be that the question would be considered differently if the claimant was an aggrieved advertiser.

If you have any questions on the above, please do not hesitate to contact the team at McDaniel & Co. on 0191 281 4000 or legal@mcdanielslaw.com.