In different countries, the owners of online media are trying to deal with ad blockers. They introduce a paid subscription, recognize blockers by technical means, may limit the functionality of the site, appeal to the conscience of readers. Publishers in Germany decided not to have a small business 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 colleagues from Eyeo use a kind of “blackmail” of publishers, first blocking advertising on the site, and then selling a place in the white list of permitted advertising. The business model is very interesting: the ad blocker receives a share of the additional profit from the site, which is obtained by disabling ad blocking on this site. They share profits earned only by Adblock Plus users.

In November 2016, Eyeo GmbH won the sixth lawsuit in Germany and defended the legality of its program. This time the 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, the 5th most visited website in the country). Despite the credibility of the plaintiff, the court took the side of a small IT-company and rejected the claim. The court promised to publish the reasoning part of the decision later. Now this document is published, there is an unofficial translation in English, pdf .

In the reasoning part of the court decision, the facts and evidence in the case, the claimant’s demands, the position of the respondent, as well as the motives of the court decision are indicated.
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The facts are such that at the claimant practically the only source of funding is 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 the browser.

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

The respondent stated that the Adblock Plus program created by him is very popular with users. In the ten years since its inception, it has been downloaded over a billion times, and almost 20% of the audience is in 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 Adblock Plus feature.

White list

To get to the white list, the website owner must sign an agreement with Eyeo, the fact of which is reported on the website .

Currently, about 3,500 websites have signed such an agreement and are on the white list of Adblock Plus. For large sites this is a paid procedure. Eyeo GmbH applies a payment model with an incremental profit section. She receives a share of the revenue from unblocked ads, shown only to Adblock Plus users, according to court documents.

Operators of small and medium sites, which make up about 90% of all entries in the white list, do not pay deductions. Eyeo GmbH itself determines which category this or that site belongs to.

Operators Spiegel Online did not enter into an agreement with Eyeo GmbH, so their site is listed in the “black list” of inappropriate Adblock Plus advertising. Thus, the program blocks virtually all ads in browsers with the Adblock Plus module installed, which significantly reduces the publisher’s earnings.

Although the “white list” function is easy to disable, in reality, 75% of users do not do this.

Plaintiff's position

The main position of the plaintiff was that the author’s materials on the site and the accompanying advertising are part of the “unified product” (unified offer). According to the plaintiff, this single product is protected by the fifth article of the Basic Law of Germany, 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 through images, as well as freely receive information from publicly available sources. Freedom of the press and freedom of information through radio and cinema are guaranteed. Censorship does not exist. ”

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

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

Court decision

The judges took the side of the defendant on almost all counts. In their decision, they took into account the fact that the plaintiff has the ability 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 advertisements. Thus, there is no reason to demand compensation from the defendant for lost profits.

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

The committee of three judges also did not find convincing evidence that the defendant "obstructs the competition", acting "with a deliberate intention to cause damage." This claim is found to be unfounded.

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

Future Courts and Appeals

At the moment, Eyeo GmbH won all six ships with publishers, with a few reservations. Spiegel Online has the right to appeal, the rest of the cases are also at different stages of the appeals process.