July 23, 2019

July 23, 2019

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July 22, 2019

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Ad Blocking Declared Legal: German Court Dismisses Discrimination Claims Brought by Publishers, but AdBlock Plus Maker Eyeo is Not Home Free Yet

The Regional Court in Hamburg rejected complaints by newspapers Zeit Online and Handelsblatt seeking to have Eyeo GmbH prohibited from selling its AdBlock Plus software. The ruling establishes the important principle that ad-blocking is legal, however there are other cases pending against AdBlock Plus in Germany that suggest that there may be more to come on this issue.

The publishers sought injunctive relief, arguing that AdBlock Plus illegally interfered with their ad-based online business models. AdBlock Plus allows users to block ads by tracking software and malware using a browser plugin which permits some “acceptable ads” to pass through the software’s filter mechanism (the so-called “white-list”). This practice was criticized as being discriminatory by media firms, as Eyeo GmbH gets paid by certain companies to put their ads on the whitelist (i.e. Google, Microsoft and Amazon.com). Users can modify the filter to block all ads.

The Court dismissed the action. The Court concluded that AdBlock Plus does not amount to an anti-competitive restriction of online offers financed through advertising. However, the full reasoning of the Court has not been published yet.

In their post-judgment statements both Zeit Online and Handelsblatt said that they are convinced that AdBlock Plus is illegal, anticompetitive and interferes with the freedom of the press, but noted that they are waiting for the written judgment before deciding whether to appeal the case. Eyeo welcomed the ruling, highlighting the fact that the Court upheld the right of users to continue to block ads and protect their privacy.

The decision is not the first against AdBlock. In 2013, ProSiebenSat.1 Digital GmbH took action against AdBlock. However, its request for a preliminary injunction in the Hamburg Regional Court was withdrawn before it was heard, due to procedural deficiencies.

In December 2014 proceedings, the Munich Regional Court did not uphold discrimination complaints against Adblock in case brought by Pro Sieben Sat 1, IP Deutschland, and RTL Interactive. During the hearing the judge found that the case had not been made that Eyeo abused a dominant position vis-à-vis media companies, or that the software misleads users.

Several other German media companies, including IP Deutschland (owner of RTL) and publisher Axel Springer have lawsuits pending against Eyeo in which they seek damages.

© 2019 Covington & Burling LLP

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About this Author

Miranda Cole, Covington, Intellectual property attorney
Partner

Miranda Cole is a partner based in Covington's Brussels and London offices. She specialises in competition law (merger control, abuse of dominance, vertical and collaborative arrangements and technology licences and other agreements). Chambers Global notes that she "takes a proactive, holistic approach" (2014).

Her practice has a particular focus on advising companies active in the technology, communications and media, software and ecommerce, aviation and life sciences sectors. She advises clients on the competition issues raised by IP, data and...

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