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German Court Hands Axel Springer Partial Victory in Ad-Blocking Case

27007232273_8c1c4fe73a_hAxel Springer has been fighting a one-publisher legal battle in Germany against ad-blockers, and it has lost every time – until today.

Reuters reports that an appeals court in Germany gave Springer a small victory on Friday:

A German court on Friday handed publisher Axel Springer a material win in its fight against so-called ad-blockers, which users can install on computers or mobile devices to prevent advertising from being shown.

The appeals court in Cologne on Friday banned German startup Eyeo, which makes one of the world’s most-used ad-blockers, from using so-called "white lists", which advertisers can pay to get on to avoid being blocked.

Since this ruling doesn’t ban ad-blockers (which have been legal in Germany for years now) it is as best a partial victory, but for whom?

Eyeo is calling this ruling a win for them, and given that ad-blocking is still legal they’re mostly right. They’ve already announced that they plan to appeal. In the mean time, they will only make minimal changes to how they operate.

They’re still going to maintain a whitelist of acceptable ads which users can choose to let through AdBlock Plus, and Eyeo is still going to charge larger companies to get on to the whitelist, but for now Axel Springer will be getting a free pass:

As said, we won the main part of their multi-pronged appeal. Ad blocking was once more proven 100 percent legal. However, this time the court found an obscure, newly passed statute in German unfair competition law. Introduced in December 2015, this statute, Paragraph 4a UWG, is based on a European directive that was intended to protect consumers against aggressive business tactics. But Germany rewrote the law, taking it farther than Europe intended, and making it apply not just between businesses and consumers but also between businesses and other businesses.

Axel Springer’s attorneys used this sub-clause to justify their secondary request to the court: “to ban an adblocker if that ad blocker allows ads that meet certain criteria and requires that Springer [emphasis mine] needs to pay a fee for it.”

Now, the Acceptable Ads initiative to which this obliquely refers is completely fair and utterly transparent. What it provides is a way for publishers and advertisers, if they so choose, to reach ad blockers on their terms.

But because of this finding, we have to change how we offer whitelisting to Axel Springer in Germany. Normally, because Axel Springer would probably qualify as a “large entity” per our rules, they would pay; but because of this ruling, we have to treat them as a special case. Simply put, we can’t accept compensation for the services we might render to them. So, if Springer brings us ads to whitelist, and these fit our criteria, we’ll whitelist them for free just like the other 90 percent of the companies on our whitelist.

Rest assured, we’re going to appeal. And we’re confident that Germany’s supreme court (the Bundesgerichtshof) will overturn this one part of the decision.

image by Marty the Adventurer

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