German courts find for the second time that AdBlock Plus is legal

Ray Walsh

Ray Walsh

मई 29, 2015

These days advertisements are a part of life which are completely unavoidable. You would need to be blind to walk down the street and not be targeted by adverts; on buildings, on the sides of buses – just about everywhere!

Even if you are blind, marketing companies not only target individuals with audio adverts – on the radio, and on the television – but are also constantly working on new and innovative ways to target us with marketing as we casually walk down the street. Perhaps with  ‘audio spotlight’ technology, for example, which can beam a sound directly into your cranium in order to get your attention, and bring an advert into your selective consciousness without you even needing to focus your attention.

Considering the huge amount of marketing that we are exposed to (according to some estimates anything between 700 and 5000 individual bits of marketing per day,)  it should come as a relief that a German court has once more ruled this week in favor of Eyeo, the owner of popular internet ad-blocker AdBlock Plus.  After all, if we have to have our minds invaded so many times during our daily routine, why shouldn’t we be allowed to exclude them, if we want to, when in our homes browsing the internet?

AdBlock Plus, which is very popular with users (it has been downloaded approximately 400 million times,) was first found to be legal in a Hamburg courtroom last month. Die Zeit and Handelsblatt were both defeated, and it was decided for the first time that users do have the right to use the plugin to hide unsolicited adverts.

Now a court in Munich has ruled that television broadcasters ProSiebenSat.1 and RTL interactive were wrong in their assertion that AdBlock Plus was anti-competitive. This is because a setting called ‘Acceptable Ads’ allows some adverts through the smoke screen, while disallowing others completely.

ProSiebenSat.1 and RTL had felt that AdBlock Plus (not to be confused with similar program AdBlock) was cutting unfairly into their revenue streams, but the Munich court found against them based on provisions provided by EU law. It decided that AdBlock Plus is not anticompetitive due to the fact that users have to make the choice to install or not install the software in the first place.

AdBlock Plus has also come under criticism from pro-privacy campaigners because of its‘Acceptable Ads’ policy, which allows certain adverts it deems to be unobtrusive, to avoid being blocked.  This whitelist has caused controversy because it is known that Amazon, Google and Microsoft Bing, among others, have paid to be excluded from being blocked, which is why the German TV companies felt that it was anticompetitive.

In actual fact, however, despite militant privacy campaigners being angry at AdBlock Plus for allowing some companies to pay for their adverts to make it on to the whitelist, this option can be turned off in the settings by any user that wishes not to see any adverts at all, making the point rather moot.

On top of this, as long as any firm that want their ads to be on the whitelist complies with certain strict rules (such as no animation and no masquerading as content,) then as long as they are smaller to medium websites they are allowed on to the whitelist for free.  This means that it is only bigger companies that have to buy their way on to the whitelist, and are even then only allowed to do so if they comply with the same strict rules,from the AdBlock Plus FAQ,

‘Note that we will never whitelist any ads that don’t meet these criteria. There is no way to buy a spot in the whitelist. Also note that whitelisting is free for small- and medium-sized websites.’

AdBlock Plus has also hit back at the idea that the whitelist makes them ‘racketeers,’ by explaining that the software is free to end users, and that in order to remain so requires certain revenue streams itself in order to stay afloat,

‘If we are racketeers we are terrible racketeers because 90% of the people on the white list don’t pay anything and the criteria is the same for everyone.’

Commenting on the first decision in Hamburg,  AdBlock Plus’s project manager Ben Williams made it clear that he feels strongly about the public’s right to hide advertising should they wish. He also made it abundantly clear that should companies wish to rethink their advertising strategies in order to comply with AdBlock Plus’s strict rules, then the option is open to them to do so by working in cooperation with  AdBlock Plus in order to gain access to the whitelist,

‘The Hamburg court decision is an important one because it sets a precedent that may help us avoid additional lawsuits and expenses defending what we feel is an obvious consumer right: giving people the ability to control their own screens by letting them block annoying ads and protect their privacy… now that the legalities are out of the way, we want to reach out to other publishers and advertisers and content creators and encourage them to work with Adblock Plus rather than against us.’

Following the decision of the Munich court, he has once more made his feelings about blocking advertisements clear,

‘[The ruling] is living proof of the unalienable right of every user to enjoy online self-determination.’

Although things are so far so good for AdBlock Plus, unfortunately if it is to remain completely legal it must still defend itself against publishing company Axel Springer in a Cologne court on the 11th of August. As Paul Henty from the law firm Charles Russell Speechlys has pointed out, not every court in Europe may necessarily have the same opinion as the German courts,

‘The Hamburg court based its decision on the provisions of EU Law… other national courts in EU member states must do likewise, but are not bound to reach the same legal conclusions,There could also be different factual or economic circumstances in those jurisdictions which lead to a different result.Nonetheless, the Hamburg judgment may be persuasive as an authority and will certainly be a boon to Eyeo in similar AdBlock disputes.’

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