Ad blocking considered an act of unfair competition in Germany?

Creators of two applications for ad blocking — Adblock Plus and Blockr — have been sued in Germany by the owners of web portals in relation to the alleged crime of committing unfair competition acts.

On 10 December 2015 a decision is expected to be issued regarding a suit filed by WELTN24 GmbH — a subsidiary of Axel Springer — against the creators of Blockr — a mobile application. Referring to the provisions of the German Act on combating unfair competition, WELTN24 applied to the court in Stuttgart for temporary relief in the form a ban on distribution, advertising and further development of this application, which unlawfully prevents Internet users from accessing their website. However, at its session on 19 November, the court stated it did not see any legal grounds for granting such temporary relief. Moreover, it indicated Internet users have every right to freely decide about using this type of application, while WELTN24 may prevent the use of Blockr by e.g. limiting access to their web content for people who have enabled Blockr or by offering paid access to the web to people who do not agree to switch the application off. In mid-October such actions were taken, with great success, by another Axel Springer company — Bild.

It is not the first court case against creators of ad blocking software — so called ad blocks. Earlier, two cases were underway against Eyeo GmbH, a company developing the Adblock Plus plug-in. The first one, brought by Zeit Online and Handlesbatt publishers, was pending before the court in Hamburg. The court considered the company’s actions legal. The other case was brought by Pro 7/Sat 1 and RTL Interactive before the court in Munich. It’s interesting that the plaintiffs in the latter case referred to the regulations of unfair competition and claimed that Eyeo abused its dominant market position. The Adblock Plus plug-in was apparently downloaded approx. 400 million times, and in Germany this type of software is used by more than 30% Internet users. Moreover, Eyeo has a white list of “non-invasive” adverts and gives paid advice in the scope of creating such adverts. Nevertheless, the court stated that Adblock Plus is used by too few Internet users to conclude that Eyeo has a dominant market position; hence, the provisions of the competition law could not be applied in this case.

It also seems that in light of legal provisions of Polish law, it would be difficult to qualify mere development and distribution of ad blocks as unfair competition acts, especially in terms of the basic business model. One shall agree with the position of German courts indicting that it is the users of web portals where adverts are placed who decide about using this type of software. Web portals’ owners may, at most, adjust their business model to new technological realities, e.g. by limiting access to their web portals for people using ad blocks. Further doubts will arise when the ad block’s creator achieves a dominant position or starts providing news publishers with additional services, for which the need will be created by their very software. In the near future it will be known which is stronger — internet users’ aversion to adverts or to paying for access to their favorite services. It may also become clear what the boundaries of good practice in this respect are.