Higher Regional Court in Cologne examined the question of legal admissibility of offering software blocking online advertising. The publisher of portals www.bild.de and www.welt.de brought an action against the distributor of the AdBlock Plus program. The offered software is free of charge, additional plugin installed in web browsers whose task is to block ads appearing when visiting websites.
The program is based on the so-called “black ”and “white” lists of websites – depending on classification of the website to one of these, ads are either available to users or not. The defendant at the same time offers websites’ owners the possibility of placing their website on the “white list” which results in ads being displayed to users and their blocking occurs through the user’s selection of additional function in the program settings. In return for unblocking the ad content the defendant received a payment corresponding to the share of the profits from advertising. The claimant did not agree to conclude an agreement to such effect and has taken a legal action requesting abandonment of offering and advertising the software.
The Court in Cologne stated that offering the software and at the same time requesting payment for unblocking certain advertisements constitutes the so-called aggressive commercial practice and prohibited the distribution of the software blocking the advertising content from the websites belonging to the claimant, requiring the defendant to repair the damage caused by his unlawful activities during 6 months before the action against him was brought and the damage that may occur in the future.
An act within the meaning of § 4 of the German Act Against Unfair Competition is to use aggressive commercial practices in relation to consumers. They encourage the market participant to make trading decisions which he would not have taken otherwise. The Court found the defendant’s actions as having unacceptable impact on the program users which are deprived of choice as a result of technical ad blockage.
The Court also found that demanding payment for unblocking advertisements amounts to a use of a stronger position against competitors and may not be considered as an equivalent for the service performed since in reality unblocking is necessary only because of prior arbitrary blocking of advertisements by the defendant.
- Judgement of the Higher Regional Court in Cologne of 24 June 2016, file reference no 6U 149/15