On 24 June 2016, the long-awaited decision on ad blocking software was adopted by the Higher Regional Court of Cologne (6 U 149/15 – Axel Springer./.Eyeo). This is the first decision on the subject matter taken by an Appellate Court in Germany, and it is a decision that takes a critical view on ad blocking software applications with so-called whitelisting. The judgment is in favor of claimant Axel Springer, Germany's largest publishing house and provider of online content, and it limits the activities of ad blocking provider Eyeo GmbH. The decision will further fuel the debate that recently reached a preliminary peak, with the commission on media convergence (BundLänder-Kommission zur Medienkonvergenz) proposing a prohibition of ad blocking software to secure media diversity.

1. CONTEXT -

Eyeo is the market leader in the distribution of software that enables the end user to consume website content without advertising being displayed. The current decision relates to ad blocking software with the so-called whitelisting function, i.e., software that allows for the inclusion of companies complying with so-called “acceptable ad” requirements in a list of companies that will not be blocked. In certain cases, website providers are additionally required to pay a fee in the form of a 30% participation in ad sales receipts. This is required for all advertisements reaching more than 10 million additional ad impressions within one month while remaining unblocked. According to Eyeo, this is the case for about 10% of all blocked promoted companies. The agreement on the whitelisting of such companies and the payment of the fee is concluded between Eyeo and the provider of the website on which the ad is published. The promoted companies themselves cannot enter into agreements with Eyeo, as the latter evaluates the specific integration of ads within the context of individual websites based on “acceptable ad” requirements. Courts have repeatedly ruled that ad blocking software in general does not infringe the law and have most often extended this reasoning to include whitelisting as well. The significance of the matter is mirrored in a proposal by the Federal-State Commission dated June 17, 2016, to assess the necessity of prohibiting ad blocking software. The initiative outlines the media’s desire for regulation of this matter with judicial proceedings lasting too long.