Recently, we reported on the series of adblocking lawsuits pending in Germany against Eyeo GmbH, the makers of AdBlock Plus. Yesterday, the District Court of Hamburg rendered the first decision in this highly controversial and avidly followed battle of several German media houses, among them Axel Springer, ProSiebenSat.1 and RTL subsidiaries. The court ruled in favor of the defendant Eyeo, deciding that its software AdBlock Plus did not constitute unfair competition. The claimants, Zeit Online and Handelsblatt, had asked the court to enjoin Eyeo from offering software that blocks publicly accessible online advertisements. In an auxiliary motion, the claimants had furthermore made reference to Eyeo’s practice of whitelisting certain acceptable ads.
Yesterday, the Hamburg judges held that Eyeo’s current adblocking practice – with or without whitelisting – does not amount to an intentional unfair obstruction of a competitor under the German Unfair Competition Act. The judges pointed out that AdBlock Plus gives users the option to block or select the advertising content they want to see. While AdBlock Plus does come with certain default settings, users can decide whether to install the software in the first place and have the option to leave or change its default settings. That given, the court saw no room for an argument of willful obstruction by Eyeo to the detriment of website operators.
The decisions in the other lawsuits pending in Cologne and Munich are awaited with keen interest. The several claimants filed motions with differing scope and invoked a variety of legal arguments, including unfair competition, copyright infringement and antitrust violations, and more developments are expected. In particular the District Court of Cologne, hearing the action filed by Axel Springer, has so far been more critical of Eyeo’s market practices. All parties have indicated that they will appeal a decision not in their favor.
First published on Hogan Lovells GMC Watch Blog 22 April 2015