In different countries, online media owners are trying to deal with ad blockers. They introduce a paid subscription, recognize blockers by technical means, can limit the functionality of the site, appeal to the conscience of readers. Publishers in Germany decided not to trifle at all - and immediately sued the developer Eyeo GmbH, whose Adblock Plus program allegedly “violates the integrity of the online product”, that is, the media site. The plaintiff also believes that Vladimir Palant and his associates from Eyeo use a kind of “blackmail” by publishers by first blocking ads on the site and then selling a place on the white list of allowed ads. The business model is very interesting: an ad blocker receives a share of additional profit from the site, which is obtained by disabling ad blocking on this site. They share the profit earned only on Adblock Plus users.

In November 2016, Eyeo GmbH won the sixth lawsuit in Germany and defended the legality of its program. This time, a lawsuit came from Spiegel Online, a division of the largest German publishing house SPIEGEL-Verlag (225 million visits per month, 996 million page hits per month, 5th most visited site in the country). Despite the plaintiff's authority, the court sided with a small IT company and dismissed the lawsuit. The court promised later to publish the reasoning part of the decision. Now this document is published, there is an unofficial translation into English, pdf .

The reasoning part of the court decision contains facts and evidence in the case, the plaintiff's claims, the position of the defendant, as well as the reasons for the court decision.

The facts are such that the plaintiff has practically the only source of financing from advertising revenue, including from displaying advertising banners on the site. The publisher can receive income only if the advertising banners are actually delivered from the advertising server and displayed to the user through a browser.

The respondent’s position is that some users find online advertising annoying and even annoying. Moreover, advertising banners on the Internet can pose a threat to security (malware is distributed through them) and to the privacy of users (tracking through the installation of cookies).

The defendant stated that the Adblock Plus program he created was very popular among users. Over the ten years since its inception, it has been downloaded more than a billion times, and almost 20% of the audience falls on Germany. At the same time, there are other ad blockers, including the more advanced uBlock / uBlock Origin blocker. Some work using blacklists, but the whitelist option is an almost exclusive feature of Adblock Plus.

White list

In order to be whitelisted, the website owner must sign an agreement with Eyeo, the fact of which is reported on the website .

At the moment, about 3,500 websites have signed such an agreement and are in the white list of Adblock Plus. For large sites, this is a paid procedure. Eyeo GmbH uses a pay-as-you-go payment model. She receives a share of the proceeds from unlocked ads shown only to Adblock Plus users, court documents said.

The operators of small and medium-sized sites, which make up about 90% of all entries in the white list, do not pay deductions. Eyeo GmbH determines for itself which category a site is in.

Spiegel Online operators did not enter into an agreement with Eyeo GmbH, so their site is blacklisted for inappropriate Adblock Plus ads. Thus, the program blocks almost all advertising in browsers with the Adblock Plus module installed, which significantly reduces the revenue of the publisher.

Although the whitelist feature is easy to disable, in reality 75% of users do not.

Plaintiff's position

The main position of the plaintiff was that the copyrighted materials on the site and the accompanying advertising are part of the “unified offer”. According to the plaintiff, this single product is protected by the fifth article of the German Basic Law, which guarantees freedom of the press and freedom of information and guarantees the absence of censorship: “Everyone has the right to freely express and disseminate his opinion orally, in writing and by means of images, as well as to freely receive information from publicly available sources. Freedom of the press and freedom of information through radio and film are guaranteed. Censorship does not exist. ”

According to the plaintiff, the defendant deliberately exploits circumstances (blocking ads by users) for its own financial gain, understanding the fact that the publisher has no other choice but to apply for inclusion in the white list.

The plaintiff demanded that the defendant reimburse the costs of blocked advertising and consider the possibility of punishment for the two heads of Eyeo GmbH in the form of imprisonment for up to two years.

Judgment

The judges took the side of the defendant in almost all respects. In their decision, they took into account the fact that the plaintiff has the opportunity to deal with ad blockers on their own. For example, you can simply not allow such users to the site or use special technical solutions to bypass blockers to force the display of ads. Thus, there is no reason to demand from the defendant compensation for lost profits.

The plaintiff explained that alternative methods are not a viable long-term strategy. In other words, this will be an endless game of cat and mouse. The court did not heed these arguments.

The committee of three judges also did not find convincing evidence that the defendant “impedes competition” by acting “with the intentional intent of causing harm." This claim is recognized as unfounded.

The court also took into account that in August 2015 Adblock Plus was installed on approximately 9.55 million browsers with German IP addresses, which is only about 5% of Internet users in Germany.

Future Courts and Appeals

So far, Eyeo GmbH has won all six vessels with publishers, with few reservations. Spiegel Online has the right to appeal, other cases are also at different stages of the appeal process.