German publishers have amassed a singularly unimpressive legal track record in their attempts to ban ad blocking through litigation. At least five different publishers have lost court battles over ad blocking in general, and against the Cologne based startup Eyeo/Ad Block Plus, in particular. While big German publishers like Axel Springer have reacted with fury to the companies behind ad blocking tools, courts have not, until now, accepted their arguments that ad blocking was inherently a malicious business practice, little better than extortion.
Reports out of Germany this week, however, indicate that the publishers’ losing streak is about to end. Even after defeats in lower regional courts in Cologne, Munich and Hamburg, a higher regional court, the Oberlandesgericht in Cologne is set to announce a victory for Axel Springer against Eyeo by the end of June. Based on the judges’ statements during oral arguments on May 20, the court is ready to accept the publisher’s argument that Eyeo’s Ad Block Plus and Acceptable Ads program put Springer and Eyeo in “direct competition,” and, hence, that the startup’s behavior does count as illegal “unfair business practices” against a competitor.
The court did reject a number of other Springer complaints against Eyeo, including the charge that ad blocking companies should be financially liable for the publisher’ lost income, or that ad blocking is a circumvention tool for violating copyright, or an assault on the freedom of the press. Eyeo’s lawyers disputed the notion that the company had the necessary “market power” to disrupt fair competition noticeably, but the existence of lucrative contracts between the tiny startup and economic giants such as Google, Amazon and Microsoft seemly convinced the judges otherwise.
Regardless of the exact details of the decision expected later this month, both sides have indicated they will likely press the case to Germany’s highest court, the Bundesgerichtshof.
While Axel Springer executives will certainly derive great satisfaction from the expected decision of the Cologne appeals court, it does raise the question of what their final legal end game actually is. If this court, or the next, does ultimately get Eyeo’s Acceptable Ads program banned in Germany, it is hard to see how the publishers’ outlook would really improve. There are dozens of other ad blocking tools available that would not be affected by such a prohibition, not to mention the many ad blockers, like the excellent uBlock Origin that have no commercial aspect whatsoever, and are maintained and supported by deeply committed volunteer developers. If anything, where Ad Block Plus to disappear tomorrow, the ultimate effect would likely be to drive its tens of millions of users to extensions like uBlock Origin. And unlike Eyeo, the people behind uBO have absolutely no interest in working with publishers or advertisers at all, but have essentially declared total war on them. It would make more sense for publishers like Springer to work together with Eyeo to come up with a solution that both sides could live with, instead of driving those users to far more effective and uncompromising opponents with absolutely no financial incentive to find a compromise.
[For non-German readers: only link to coverage in English I could find]