A recently released study on the spread of ad blocking and its effects, researched by advertising software maker PageFair, has brought renewed attention to the online ad avoidance movement. The findings of the study are complex, even contradictory, but both publishers and marketers continue to be alarmed by the growth of blocking.
A number of large publishers, particularly in Germany, have decided to use lawsuits to fight the spread of ad blocking, and the latest twist in this on-going legal campaign has increased the stakes, for both the media companies and the software company behind the most popular ad blocking tool.
In late January, the German tech journal Heise reported that officers from the Cologne police department served search warrants on Eyeo GmbH, going through company headquarters in Cologne, its Berlin office, and the homes of at least three Eyeo employees. The warrants stem from a criminal complaint, seemingly initiated by German publisher Axel Springer, accusing Eyeo, the company behind the popular Adblock Plus software, of “commercial copyright infringement.”
For years, German publishers have doggedly fought Eyeo in court, trying and, for the most part, failing, to get Eyeo declared in violation of commercial competition statutes. Using rhetoric replete with claims of “blackmail” and “highway robbery,” online German publications have targeted Eyeo’s “Acceptable Ads” program that allows certain kinds of advertising through Adblock Plus’ filters, based on the nature of the ads and, sometimes, for a fee.
Despite these lawsuits, brought by some of Germany’s most established publications, including Spiegel and the Sueddeutsche Zeitung, judges have consistently ruled in Eyeo’s favor. In their view, individual users actually do the ad filtering on their own computers, therefore Eyeo is merely providing a software tool, and is not liable.
Nonetheless, Axel Springer, the publisher of Bild, Germany’s largest circulation newspaper, won a partial victory against Eyeo in October 2015. Bild introduced a new kind of paywall, a “blockwall” that required readers to either turn off their adblocking tools or pay for a subscription to an ad light version. Almost immediately thereafter, Springer secured a restraining order against Eyeo, to prevent Adblock Plus from distributing tools for users to evade the blockwall, and read the paper without a subscription or seeing ads.
In order to counter all the various ways publishers show ads to users, adblocking software needs constantly maintained filter lists, updated by thousands of volunteers who contribute to open source repositories of ad blocking technologies. Eyeo the company maintains their legal distance from these filter lists, neither contributing or administering them, but merely allowing Adblock Plus users to subscribe to through the software.
Shortly after the introduction of Bild’s blockwall, the very popular EasyList filter updated to allow Adblock Plus users to evade the new defense. In response, and in a departure from their previous “blackmail” legal arguments, Springer accused Eyeo of distributing a tool that breaks encryption to infringe copyright. The district court in Cologne agreed, although, as Eyeo was quick to point out, the judges’ decision did not address the legality of ad blocking, or even crowd-sourced filters, just the specific issue of breaking Bild’s new form of DRM. Eyeo agreed not to provide instructions on how to evade the Bild blockwall, or distribute filters that would do it. At the same time, a video blogger Tobias Richter, who had posted YouTube videos on how to evade the Bild blockwall, was also sued and forced to take down his instructional clips.
Springer continues to fight Eyeo, even while the software company racks up victories against publishers in German courts, with Sueddeutsche losing in March, and Der Spiegel losing in December. In June, however, the state court in Cologne decided that while ad blocking via blacklists was legal, the use of white lists, and Eyeo’s charging for entry on the lists was problematic, but that the topic was important enough for Germany’s highest court, the Federal Constitutional Court, will have to decide the matter.
While no one expects a final judgement to arrive quickly, the fight between Axel Springer and Eyeo continues to evolve. The recent searches warrants stem from accusations from Springer that Eyeo is materially responsible for the filter lists the distribute. An Eyeo employee does often work on the EasyList filter, and Springer believes there is evidence he does so on company time. And the video blogger Springer sued over ad blocking instructions, who had at first vowed to fight the publishing giant, has given up his legal campaign after losing his initial defense argument and facing extremely expensive punitive damages.
Ultimately, it is hard to believe that even a comprehensive victory for Springer from the German high court would some how restore the revenue the publisher believes it loses because of adblocking. Forcing users to experience ads against their will is unlikely to win back their allegiance, while more creative avenues, or even subscriptions, might produce better returns.