24 April 2018Copyright

Victory for ad blockers at Germany’s Supreme Court

Germany’s Federal Court of Justice (Bundesgerichtshof) has dismissed an attempt to ban an application that blocks online advertising, confirming that the software does not fall foul of unfair competition regulations or copyright law.

The Supreme Court delivered judgment on Thursday, April 19, and for the first time filming was permitted during the oral declaration of the court’s ruling.

Advert blocker Adblock Plus has been downloaded more than 400 million times, according to Eyeo, the company behind the software. The application offers users protection from unwanted or intrusive online advertising.

German company Axel Springer is one of many media firms (including ProSiebenSat.1 Media, RTL, Sueddeutsche Zeitung and Spiegel Online) which instigated lawsuits against Eyeo. Springer’s case is the first to reach the Supreme Court.

Eyeo charges entities to be added to Adblock’s ‘white list’ of companies whose advertising material would be allowed through the blocker, which Springer claimed to be a violation of competition law.

It additionally accused Adblock of breaching copyright law by altering the underlying code of websites, such as its own platform, to change the advertising content shown to users.

In September 2015 the Regional Court of Cologne ruled against Springer and affirmed the legality of Adblock. Springer appealed and, in June 2016, the Higher Regional Court of Cologne upheld the majority of the ruling.

During the appeal, Springer referred to a statute in German unfair competition law, which was passed in December 2015 and based on a European directive intended to address “aggressive commercial practices”, according to an Adblock release.

Springer argued that the law had the effect of banning advert blockers which allowed adverts of a certain criteria to be shown, but required payment to appear on the ‘white list’.

The appeals court affirmed the legality of Adblock but said it must change the way it offers ‘white list’ status to Springer, meaning that if Springer’s advertisements meet certain criteria they have to be added to the ‘white list’ for free.

Eyeo appealed on this point. As well as confirming that online advert blockers are legal applications, the Supreme Court overturned the ruling that operating a ‘white list’ was tantamount to unfair competition.

Anthonia Ghalamkarizadeh, counsel at Hogan Lovells, said the enforcement of ad blocking regardless of the monetary scheme behind it is surprising, as it allows publishers or advertisers to receive preferable treatment if they are willing to pay for it.

The Supreme Court said that no laws were broken by Adblock, as it was the decision of individual users to use the software. Adblock works via a user’s computer, rather than allowing the interference with the source code of Springer’s platform.

Claas-Hendrick Soehring, head of media law at Springer, called the verdict an “attack on the heart of the free media” and, according to Reuters, the media company has vowed to appeal against the verdict on the grounds that advert blockers such as Adblock violate press freedom by disrupting online media.

A release shared on Adblock’s site said: “We are excited that Germany’s highest court upheld the right every internet citizen possesses to block unwanted advertising online. As we have since 2014, we will continue to fight for users’ rights in Germany and around the world.”

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