Posted by Alexander Hanff on August 13, 2015.
Earlier this week I boarded a plane to Dusseldorf in Germany in order to attend a court session in Cologne regarding ad blocking. The purpose was to continue my research on how these privacy enhancing tools are being targeted by the publishing and advertising industry and follows on from a debate I hosted at the European Parliament in Brussels last month.
The case in question centres around Eyeo GmbH – the German company behind AdBlock Plus, which is a browser plugin that allows Internet users to prevent their web browsers from downloading advertising when they view web pages.
Eyeo have been in court multiple times this year facing lawsuits from major German publishers and have already won cases in Munich and Hamburg. On Tuesday this week they faced a challenge from Springer (the publishing giant behind Bild.de, Welt.de and other media outlets).
Springer have filed legal action against Eyeo and their founders seeking the following actions:
OR (if the Court refuses to take action on the above)
They are filing under alleged infringements under Unfair competition law, civil law, copyright law and trademark law.
First let me explain a little about the two actions they are seeking. In the case of the first complaint they are asking the Court to ban Eyeo from being involved in any way with Ad Blocking software – which considering Eyeo’s entire product line is based on Ad Blocking would effectively put them out of business.
If the Court refuses to entertain the first complaint then they are further asking the Court to ban Eyeo’s Acceptable Ads programme.
What is the Acceptable Ads programme?
When AdBlock Plus originally launched it blocked everything in the community developed lists which could be used with AdBlock Plus (such as Easylist and Easylist Germany as per Springer’s complaint) but after a great deal of research and outreach to the AdBlock Plus community they became aware that their users didn’t necessarily want to block all advertising – they just didn’t want to be subjected to annoying or overly intrusive advertising such as animated video banners, or advertising which interfered with the content of a web page in such a way as to make it difficult to read; community members were also deeply concerned with behavioural profiling and of course with the security risks of malware.
The founders of AdBlock Plus also didn’t want to be responsible for removing a critical revenue stream from publishers which allows them to monetise their content and keep most of the information on the Internet, free.
So a couple of years ago they embarked on a survey with their online community asking which types of adverts they would find acceptable and as a result of that the Acceptable Ads programme was created.
The criteria for Acceptable Ads were determined by the community based on the results of the survey and any publisher can apply to be added to the Acceptable Ads whitelist if they are willing to comply with those community developed criteria.
The programme has proved popular with publishers who are willing to yield to the wishes of their audience and the whitelist is publicly available for anyone to scrutinise. Publishers who are added to the whitelist are audited by the community and should they fall outside the boundaries of the agreed to criteria they can be reported and are removed.
Some larger publishers pay Eyeo a fee in order to be added to the whitelist but despite the outright lies many press articles publish – those companies still have to comply with the criteria the same as publishers who pay nothing. The reason larger publishers pay is because of the amount of time and personnel it takes to manage their whitelist entries – which is a job that Eyeo must pay staff to do and therefore they need to be able to charge large publishers for this work. As it currently stands over 90% of partners in the Acceptable Ads programme pay absolutely nothing and of the larger publishers who do – they all have to comply with the Acceptable Ads criteria – yes even Google and Amazon.
So it is really a win win for everyone involved – the community are happy because they no longer see annoying, intrusive or dangerous ads; publishers are able to monetise content viewed by an increasing audience of Ad Block Plus users; and Eyeo are able to hire staff to continue to develop the core Adblock Plus software (which they have released as Open Source and is used by many other ad blockers).
So why are they being sued?
The problem is, the use of ad blocking software is on the rise and this means that publishers have two choices – they can either change the way they monetise their content or they can try to have ad blocking banned by suing developers of ad blocking software. Of course, as is so often the case of incumbent companies in the content industry – they don’t want to change the way they do things – they have no desire to adapt and create a sustainable model for the long term; they have a lot of money and would rather try to sue developers out of existence with the hopes it will scare of other developers from doing the same thing in the future and protect their out of date business models.
Predictably, like those other rich companies from the content industry which came before them (such as the Music and Movie industry), they are losing the battle and being forced to change and so far each case Eyeo have had to fight they have won and for good reason.
You see, Eyeo are not responsible for the choices we make about what we want to see on our screens. AdBlock Plus is not installed in our web browsers by default – it is a tool we have to seek out, install and configure ourselves. It is the users of ad blocking technologies who are making a choice and taking action against the publishing industry. Furthermore, it is our legal right to do so under Article 5(3) of the ePrivacy Directive which permits us to use browser controls to prevent the malicious and obtrusive actions of the advertising industry against our fundamental right to Privacy.
Also, a ruling in the German Supreme court against RTL in the TV Fairy case (an adblocking technology for television broadcasts) made it clear that citizens have a legal right to block the display of advertising.
Springer also tried to argue that if ad blocking is permitted to continue they will be forced to go out of business or start charging for their content – however, this was swiftly countered by Eyeo’s lawyers who pointed out from Springer’s own financial records that despite the increasing growth of ad blocking, Springer’s digital advertising profits have continued to rise (performing better than any of their other revenue models)
Thankfully, as with the cases Eyeo have already defended in Hamburg and Munich, the Cologne Court on Tuesday also seemed to take a favourable view, with the judge arguing that a judgment in the first complaint is covered by the TV Fairy case and in the case of the second complaint (the Acceptable Ads whitelist) there would be no benefit to Springer or other publishers and in fact the opposite would be true. If the Court were to force Eyeo to cease the Acceptable Ads programme publishers would in fact lose money as all advertising would be blocked – therefore it would make no sense for the Court to make such a ruling.
The hearing on Tuesday was for oral arguments and a judgment was not issued due to the Judge allowing more time for Eyeo’s lawyers to respond to the latest arguments issued by Springer (this was down to a procedural issue which meant Eyeo did not have enough time to respond before Tuesday’s hearing) – however, based on the statements made by the Judge in Tuesday’s session, it seems highly likely that the final judgment (on September 15th) will in fact go in Eyeo’s favour.
Of course all these judgments will be appealed because the idiocy of the content industry has no bounds and they can afford it – so these cases are likely to go on for several years to come. However, it is unlikely that the Courts will ever change their mind given existing EU and German law and also because it would be utterly illogical to do so. Hopefully good sense will prevail until the content industry finally realise they have to adapt and change their ways.
One thing which was very clear in Tuesday’s hearing however, was the utter contempt Springer has for their readers. They argued that the users of their web sites had no stake in the case and their opinion on advertising is irrelevant. They claimed that people who visit their web sites are contractually obligated to view ads and by blocking them they are breaking the law (which is clearly not the case under existing case law and regulations). They also seemed to believe that people who visit their web sites are stupid and don’t understand what the ad blocking software they sought out, installed and configured, does.
In conclusion, the hearing went very well for Eyeo and the publishing industry once again illustrated just how out of touch they are with the real world. I fully support Eyeo’s work and their model – I see the benefit for all involved and if you haven’t installed an ad blocker already, it really is in your best interest to do so – not just because it removes all those annoyances but because advertising networks are plagued with malware which can be installed on your computer and used to commit fraud and identity theft – online advertising is a very real threat to your security. From a privacy perspective, you have the legal right to use your web browser to block privacy intrusive tracking and profiling and as a privacy advocate who fought for these rights, it goes without saying that I support them 100%.
If you want to read more about AdBlock Plus please visit their web site at http://www.adblockplus.org