ProSiebenSat1 cannot prevent ad blockers!

Is the use and distribution of ad blocker software anticompetitive and does it infringe the property rights of a TV broadcaster as an act of copyright exploitation? The media company ProSiebenSat1 Media AG held this legal view and filed a cease-and-desist action against the software company Eyeo GmbH.

The ProSiebenSat1 Group is a digital entertainment company which, among other things, operates several advertising-financed websites.

The software company Eyeo GmbH developed and distributes its ad blocker software "Adblock Plus". The ad blocker "Adblock Plus" is not a technical filter, as the software is not capable of independently recognising different types of advertising and blocking them automatically. Rather, the ad blocker depends on the user specifying which websites or which website elements should be blocked. The user can generally decide for himself which filter rules offered in the software he wishes to apply.

ProSiebenSat1 takes the view that the business model of the software company is already impermissible.

Targeted obstruction of an ad blocker should already be assumed on the basis of the intention to obstruct, since the software company pursues the objective of eliminating advertising entirely from the market through the free distribution of the ad blocker. The software is capable of depriving the media company of this source of income for financing its internet activities and of weakening its market position.

Moreover, there is a direct interference with the websites of the media company, as these are directly changed and thus damaged by "Adblock Plus" both in their operation and in their appearance. This constitutes an act of exploitation in violation of copyright law, which should be ceased.

Court decision

The Regional Court (LG) Munich I ruled by judgment of 27.05.2015 – Az. 37 O 11673/14 – that a legal violation by the software company was absent. The supply and distribution of ad blocker software is not objectionable under competition law. In particular, media companies would not be unlawfully obstructed by the ad blocker software.

The decisive factor is that it is internet users who, based on an autonomous and independent decision, install the ad blocker, configure the settings and thereby block the display of advertising insertions.

Furthermore, there is no act of exploitation in violation of copyright law on the part of internet users and no involvement of Eyeo GmbH in such an act. The mere use of an ad blocker is not an act of exploitation in violation of copyright law by the individual website visitor, even if the website operator does not consent to the use of the ad blocker.

Conclusion

The distribution and development of software for blocking displayed advertising is compliant with German competition law and copyright law. What is decisive is that the user himself makes the decisions as to which advertising should be blocked and this is not prescribed by the ad blocker.