AdBlock Plus permissible

Programs that suppress annoying advertisements on websites are practical. Opinions on their permissibility have previously differed. The Federal Court of Justice (BGH) has now clarified that the offering of the ad blocker program AdBlock Plus is not unfair and is therefore permissible.

The Axel Springer publishing company, which editorial content on its websites and finances the offering through advertising, had brought the action.

With the ad blocker AdBlock from Eyeo GmbH, advertisements on websites can be suppressed. Advertisements that fall within filter rules contained in a so-called blacklist are automatically blocked. Eyeo offers companies the option of having their advertisements exempted from this blockade by inclusion in a so-called whitelist. However, this requires that the advertisement meets certain requirements for "acceptable advertising". Furthermore, Eyeo demands at least from larger companies a share in turnover.

Axel Springer publishing company considered AdBlock Plus to be anti-competitive and demanded that the offering of the program be prohibited. The action was unsuccessful at first instance. The appellate court granted the requested prohibition.

Decision of the BGH: AdBlock Plus not unfair

In its judgment of 19.04.2018 – I-ZR 154/16 (Pressemitteilung Nr. 78/2018) the Federal Court of Justice (BGH) overturned the appellate decision with regard to the prohibition.

The offering of the ad blocker does not constitute a targeted obstruction. There is no intent to displace. Eyeo pursues primarily the promotion of its own competition. It generates revenue by providing, in return for consideration, the possibility of releasing advertisements through inclusion in the whitelist. The business model therefore presupposes the functionality of the website offered by the publisher.

Eyeo does not act directly on the services offered by the publisher with the offering of AdBlock Plus. The use of the program lies within the autonomous decision of the internet user. It is reasonable for the publisher to take defensive measures. For example, users who are not willing to refrain from using an ad blocker could be locked out.

The Federal Court of Justice (BGH) did not consider that the business model of providing free content on the internet would be destroyed. The court also ruled out unlawful influence on market participants.

Conclusion

After several courts have already dealt with the permissibility of AdBlock Plus, the Federal Court of Justice (BGH) has now confirmed previous case law and clarified that the offering of ad blockers is permissible under competition law.

Whether this case law will be confirmed by the Federal Constitutional Court (BVerfG) remains to be seen. Axel Springer publishing company has already announced a constitutional complaint against the judgment.