Hamburg District Court Ref.: 315 0 293/15

Pronounced on November 25, 2016

Schröder, Justice Secretary Clerk of the Court

[]

- Claimant -

Attorney of record: Sch

versus

Eyeo GmbH, represented by the Managing Directors Wladimir Palant and Till Faida, Im Klapperhof 7-23, 50670 Cologne

- Defendant -

Attorney of record: C .

The Hamburg District Court (Landgericht Hamburg) - Civil Chamber 15 - represented by Presiding District Court Judge Dr. , District Court Judge Dr. and District Court Judge based on the hearing on July 13, 2016 hereby rules:

Judgment IN THE NAME OF THE PEOPLE

Spiegel Online GmbH, represented by the Managing Directors Matthias Schmolz and Katharina Borchert, Ericusspitze 1, 20457 Hamburg

2 The action is dismissed.

The Claimant shall bear the costs of the proceedings.

The judgment is provisionally enforceable against a security bond in the amount of 110

percent of the respective sum to be paid.

Facts of the case

The Claimant operates SPIEGEL ONLINE under the Internet presence www.spiegel.de, a

leading news website on the German-speaking Internet. The Claimant has also operated

www.bento.de, a news service for young people, since 2015. The Claimant also offers these

services in a format suitable for mobile devices via its websites. With over 225 million monthly

visits and 996 million page impressions, the main page of Claimant’s website is the fifth most

frequently visited website in Germany.

The Claimant’s online presence is freely accessible and is financed almost exclusively by

advertising revenue. There are myriad opportunities for generating such revenue online. The

Claimant generates its advertising revenue via a form of advertising called display ads. Display

ads are advertisements that appear on webpages. They may appear in text, image or video

format in different areas of a webpage. The Claimant utilizes a variety display ads. One form,

known as wallpaper, uses the top and right sections of a website for advertising purposes, for

example. This form of advertising comprised an approximately 45-percent share of the formats

used in 2014 and is also by far the Claimant’s most frequently used form of advertising.

Special servers, called ad servers, are used to present these ads. These ad servers are used

to control how advertising is delivered and to measure and analyze contacts. Conversely, the

Claimant’s journalistic reports are located on a different server. To display the ad in connection

with the journalistic reports when an Internet user accesses the webpage, a query is sent to

the ad server to send an advertising banner from the pool of existing ads. The ad server then

sends the corresponding elements to the user’s browser, where an

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advertising banner is displayed at the intended location. If the user clicks on the ad in order to view

it, then the user is first forwarded back to the ad server, which logs this process and forwards the

user to the advertiser’s webpage. This creates a log of how successful the ad is and makes it

possible to evaluate it based on the number of ad impressions (number of times an ad is displayed)

and ad clicks (number of times an ad is clicked).

Prices for placing ads can be calculated based on a variety of different models. It is possible to

invoice by page impressions and visits and by clicks and sales. Common among all payment models

is that they only work if the ads reserved by the advertiser are actually delivered via the ad server

and noticed by the intended recipient.

The Defendant is the software company Eyeo, which was established in 2011. The company’s

mission is to change how advertising works on the Internet. The Defendant offers what is known as

an ad blocker for this purpose.

Some Internet users view online advertising as annoying or even obtrusive. Moreover, advertising

on the web can also present a security risk. Ads could mask malicious software in the form of

computer viruses or trojan horses, for instance. This malicious software, also known as malware,

can exploit security vulnerabilities in advertising banners to access Internet users’ computers.

Simply visiting the respective webpage is enough for an attack to take place. This type of malware

can be present on any webpage. Furthermore, some Internet users have data privacy concerns

with respect to online advertising. For example, ads displayed online can save small text files known

as cookies to users’ computers. These cookies can then be used to log user behavior even after

leaving the respective website, thereby helping create user profiles. The transmission of ads via the

Internet is also added to the users’ data download volume. This is relevant in instances where a

user’s Internet access plan includes specific limitations, for example when accessing large data

volumes, that result in additional costs or lead to download speed restrictions once a certain data

volume has been reached. Consequently, alongside their primary purpose, programs that block ads

help defend against malware, prevent websites from creating a user profile and reduce the amount

of data downloaded. Despite these arguments against online advertising, some Internet users

acknowledge that many websites

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are financed via advertising and that this is the only way to provide content free of charge.

This is why the Defendant has marketed the program it developed in 2006 (“Adblock Plus”) free

of charge since 2011. Among other features, this program blocks webpages from displaying

obtrusive advertising. The program is available as an add-on for all common Internet browsers

and works with virtually any operating system. It only takes users a few clicks and a matter of

seconds to download and install Adblock Plus. Furthermore, the Defendant’s software program

is also available as an app for Google Android and Apple iOS mobile devices. Following

installation, Adblock Plus prevents the display ads described above from being presented on

webpages. From a technical standpoint, during a visit to a webpage, the browser first requests

the appropriate HTML file, which includes a type of table of contents. Then the elements listed

therein are downloaded separately. Now when the Defendant’s program recognizes one of

these elements the request is blocked, meaning that the ad is not displayed in the browser. A

block list (blacklist) for the user’s language is integrated in Adblock Plus by default to enable

this operation along with an exclusion list (whitelist), which contains acceptable advertising.

Users can extend and modify both lists. These filters enable the program to then prevent

undesired ads from being delivered to users and allow acceptable advertising. A unique feature

of Adblock Plus is this interplay between blacklist and whitelist.

The blacklist blocks ads via a list of the corresponding websites. These country-specific

blacklists are filter lists that volunteer authors maintain manually. EasyList Germany is one

example of this type of list. It specializes in blocking ads delivered by ad servers to German-

speaking websites. Consequently, the Defendant is not directly responsible for creating these

blacklists; it merely integrates them into its own program. EasyList Germany is enabled by

default in Germany. However, Adblock Plus users have the option of using additional or different

filter lists within the application.

The whitelist includes unobtrusive advertising, which is not blocked. This whitelist is enabled by

default, but can also be modified or completely disabled so that all advertising is completely

blocked. Users receive

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transparent information regarding all of these options. However, around 75 percent of Adblock Plus

users leave the whitelist enabled with its default settings. The prerequisite for admission onto the

Defendant’s manually created whitelist is that the website operator meet the requirements outlined

by the Defendant with regard to acceptable advertising criteria, undergo a corresponding whitelisting

process and conclude an agreement with the Defendant – in exchange for a fee in some cases.

The Defendant’s requirements regarding acceptable advertising to be added to the whitelist vary.

Among other things, ads should be static and not include any animation or sound. Wherever

possible, only text should be used and not any attention-grabbing images. In addition, ads should

not cover the website content. Ads should not be placed in the middle of webpages that feature text,

where they could interrupt the reading flow. Ads should be clearly marked as such with the word

“Advertisement” or comparable labels and be easily distinguishable from the content of the

webpage.

The whitelisting process begins with the website operator completing an online form. Once the

Defendant has verified whether the criteria have been met, the website operator and the Defendant

sign a corresponding agreement. Then the website is whitelisted and the Defendant posts this

information in its web forum. This open forum allows users to permanently share information on

whitelisting and permissions. No express approval requirement is intended. Instead, whitelisted

status is not revoked until justified objections arise in the forum against whitelisting the ad. Currently

around 3,500 websites have been added to the whitelist.

The Defendant requires operators of large websites to pay a fee in order to be added to the whitelist.

The Defendant uses a success-based fee model. The Defendant receives a share of the additional

earnings. The Defendant generally requests a fee of 30 percent of the additional advertising revenue

that the website operator generates as a result of being added to the whitelist. The Defendant does

not demand a share of the advertising revenue generated by visits from users who do not have

Adblock Plus activated or users who have added their own exceptions to the blacklist. Small and

medium-size website operators, which make up around 90 percent of the whitelisting partners, are

not required to pay this fee. The Defendant determines which category a website falls into and

whether

a fee should thus be charged using a test whitelist release. The limit set by the Defendant is an

additional 10 million ad impressions per month generated as a result of the whitelisting.

Adblock Plus is very widespread. The Defendant’s software has been downloaded over one billion

times worldwide. The defendant’s program is also very popular among German-speaking web users,

which make up close to 20 percent of all Adblock Plus users. However, the parties are in dispute as

to the specific popularity of the Defendant’s program in Germany along with the appropriate billing

method.

There are multiple products that compete with the Defendant’s Adblock Plus software program in

the marketplace. Many of these programs also work by using blacklists. The various ad blockers

generally access identical lists, such as EasyList Germany. However, these competitive products

generally do not include a whitelisting feature; instead they block all ads that are identified as such.

In many cases, the competitive products that do include a whitelist feature use the existing whitelist

created by the Defendant. Otherwise, users can configure their routers, modify what is known as a

host file on their operating system or use their browser settings to block advertising on the Internet.

The use of ad blockers has economic consequences for the Claimant. The display format advertising

used by the Claimant is classified as unacceptable advertising by the Defendant. Therefore, the

Adblock Plus program suppresses virtually every ad on the Claimant’s website. The use of the

Defendant’s ad blocker means that the ads on the Claimant’s webpages are no longer loaded from

the respective ad servers that the program blacklists. This means that the ad servers can neither

log ad impressions nor ad clicks because the ads are not delivered. The Defendant’s program thus

has a de facto impact on the advertising and thus on the Claimant’s financing options.

The Claimant has multiple direct options available to it for reacting to ad blockers in general. Website

operators are able to demonstrate to visitors who use ad blockers that this is not in their best

interests. This is the path that the operators of the www.prosieben.de website chose. Visitors with

ad blocking software installed are shown a video clip featuring German comedian Stromberg. The

clip is designed to raise awareness. In the video he

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explains why advertising is indispensable as a basis for financing free content on the web.

Operators also have the option of restricting the site’s usability. Expanding videos to full screen

mode could be blocked, for instance, or the quality of the videos could be reduced. Beyond

this, ad blocker users could also be completely barred from using a website. Finally, it is

technically possible to play ads despite the use of Adblock Plus or other ad blocking software

albeit against the users’ will. Addefend is a program that spoofs and circumvents ad blockers,

for instance, by playing ads in a manner in which the address of origin of the ad (Uniform

Resource Locator/URL) does not point to an ad server as usual, but to the site the user is

currently visiting instead.

In principle, the Claimant also has access to alternative financing models. For example, the

Claimant could at least partially finance its website by offering paid content. Other journalistic

content providers have already experimented with these types of payment barriers. However,

the parties are in disagreement about Internet user acceptance of these types of models.

The Claimant asserts that the website it designed comprising journalistic content and

advertising contributions presents a unified offer. Moreover, the Claimant is of the opinion that

this unified offer as a whole falls under the scope of protection of freedom of the media under

Art. 5 of the Basic Law for the Federal Republic of Germany (Grundgesetz/GG). Furthermore,

the Claimant is of the opinion that the negative freedom of information for Internet users

encompasses solely the freedom not to access this unified offer of the Claimant, but not to

block individual, integral parts of the offer, thereby dismantling the offer as a whole in order to

consume only the editorial content while filtering out the ads.

The Claimant asserts that the editorial options presented here are not a suitable approach to

counteracting the use of Adblock Plus because they would result in a dramatic reduction in the

number of visitors to the Claimant’s webpages. Moreover, even if these options were

exhausted there would still be strategies for bypassing them. Consequently, this would not be

a long-term solution but rather result in a sustained race to stay ahead of the technological

curve.

In addition, the Claimant argues that the Defendant’s business model endangers the Claimant’s

existence. This applies in particular due to the lack of willingness to

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pay for editorial content on the web, meaning that it is not economically viable for the Claimant

to switch to this business model. In this context, the Claimant alleges that the Defendant is

taking advantage of these circumstances by creating a business model based on Adblock Plus

that cuts journalism businesses from the only significant source of revenue they currently have

and attempts to compel them to pay the Defendant to whitelist the advertising they need in

order to survive financially.

The Claimant, represented by its attorney of record, filed a cease and desist complaint and an

order to inform and determine liability for damages against the Defendant in a letter dated July

9, 2015 due to a violation of competition and antitrust law. The Claimant retracted the claim

made during the hearing regarding the Spiegel Online app with the Defendant’s approval.

The Claimant petitions

I. For the Defendant to be sentenced, while avoiding a fine to be determined by the court for

each violation and, in the event that this cannot be collected, to coercive detention or coercive

detention of up to six (6) months (a coercive fine in individual cases of a maximum of €250,000,

coercive detention for up to a maximum of two (2) years in total), to cease and desist from

offering, advertising, maintaining, marketing and or have another party offer, advertise,

maintain or market a software program that suppresses advertising content

1. offered on the

a) www.spiegel.de website and/or

b) www.bento.de website and/or

2. on the

Spiegel Online mobile websites

or otherwise prevents or restricts this content if this happens as outlined in the appendix

[translator comment: a print out of the adblockplus.org about page].

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II. For the Defendant to be sentenced to provide information on the number of downloads for

the software program in accordance with Numeral 1 for a period of six (6) months prior to lis

pendens, each respectively broken down by month.

III. For it to be determined that the Defendant is required to compensate the Claimant for all

damages that have resulted or will result from actions outlined in Numeral I.

The Defendent petitions

For the action to be dismissed.

The Defendant claims that since the Claimant has not set up any technical safeguards, such

as linking advertising to the website’s HTML file or barring access for users who have their ad

blocking software enabled, that the Claimant has not expressed its desire to deliver all of the

elements of its website exclusively as a unified offer. Consequently, the Defendant is of the

opinion that in the absence of use of such technical safeguards, the rights of the Claimant

cannot have been violated.

The Defendant asserts that the reason why small and medium-size websites are awarded

special privileges lies in the different cost-benefit ratios. The effort required to review these

websites with very few subpages is relatively small. Conversely, the administrative expenditure

incurred by the Defendant for invoicing small and medium-size websites alone would be

disproportionately large due to the fact the additionally generated advertising revenue per

website would be relatively small but would need to be determined and billed all the same. In

contrast, large websites can have many millions of subpages in some cases, which must first

be reviewed. Even spot checking these pages would require increased expenditure. The

Defendant further argues that these checks to ensure compliance with criteria would require a

considerable amount of effort. The reviews are evaluation procedures that require human skills.

There is no reliable algorithm that could automatically determine whether an advertising format

meets the criteria for acceptable advertising. Monitoring and compliance with the criteria for

acceptable advertising in this way is also essential for the Defendant’s business model, it

claims, because otherwise users would call into question the functional capability of the

software and switch to a competitor’s product.

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The Defendant claims that its program Adblock Plus was installed on approximately 9.55 million

browsers with German IP addresses in August 2015. This corresponds to about five percent of

the computers in Germany used to access the Internet.

The Defendant argues that if its product were no longer available, Internet users would switch

to different ad blockers, which – with the exception of the whitelisting feature – function

identically. However, the more users who use the Defendant’s ad blocker in lieu of one offered

by a third party, the more potential customers would be available for acceptable advertising.

On the other hand, if the Defendant did not offer a differentiating ad blocker, then all ads would

be blocked entirely following the installation of an ad blocker.

Please refer to the correspondence exchanged between the parties regarding the details of the

facts of the matter and status of the dispute, the appendices submitted to the case files and

the minutes of the hearing dated July 13, 2016.

Grounds for the judgment

The action brought forward is unfounded. The Claimant is not entitled to the claims asserted.

I. The action is admissible. The local admissibility results from section 14 II of the Act Against

Unfair Competition (Unlauterer Wettbewerbsgesetzt/UWG), which stipulates that the venue of

jurisdiction is established in the location in which the anticompetitive violation occurred. Since

this action involves a program that can be downloaded throughout Germany, Hamburg is also

included here.

II. The claim for injunctive relief cannot be used for the prohibition of targeted deterrence in

accordance with sections 8, 3, 4 no. 4 UWG.

1. It is immaterial whether a competitive relationship exists between the parties and whether

the contested conduct of the Defendant is considered a business dealing in the sense of

section 2 I no. 1 UWG.

by the Defendant does not constitute a targeted deterrence of the Claimant. Individual

interference with competitors presupposes an attempt to limit a competitor’s ability to fully

develop in the marketplace. In order for this limitation to be considered unfair, however,

additional circumstances must be present (Federal Court of Justice of Germany (BGH)

Judgment GRUR 2001, 1061 — Mitwohnzentrale.de; GRUR 2004, 877, 879 — Werbeblocker

(Ad blockers)). These additional circumstances include acting with intent to cause damage as

well as the excessive interference with a competitor’s ability to effectively market its services.

a. The Defendant did not act with intent to cause damage. Acting with the direct intent to cause

damage cannot be assumed solely because the Defendant’s portfolio impacts the Claimant’s

revenues in the advertising market. It is inherent to free competition that financial losses may

result from decreased or lost revenues incurred by one competitor in the marketplace as a

result of other competitors’ portfolios. If it is not certain that there was intent to cause damage,

then it cannot be assumed that such intent was present without just cause. Intent to cause

damage may only be inferred in constellations in which the actions of one company do not

make business sense, i.e. do not result in any entrepreneurial benefit and only cause damage

to competitors. There is no evidence of these types of business practices here.

b. The Defendant is not interfering with the Claimant’s opportunities to realize its market

potential in an appropriate manner as a result of its own efforts. The existence of such an

excessive impact is determined by an overall assessment of the circumstances of each

individual case, in which the conflicting interests of the competitors, the consumers, other

market participants as well as the general public must be weighed against each other (BGH

GRUR 2001, 1061 —Mitwohnzentrale.de; GRUR 2004, 877, 879 — Werbeblocker; GRUR

2010, 346 marginal ref. 12 — Call forwarding).

First it should be noted that the existing constellation cannot be compared with such behaviors

through which a competitor’s products or services are directly or indirectly impacted. Therefore,

it is not a product-related deterrence (A.A. LG Berlin, judgment dated December 8, 2015 — 16

O 449/15; LG Hamburg, judgment dated May 3, 2016 — 308 O 46/16). This is due to the

absence of a physical impact in the form of destruction or alteration. The behavior is also not

comparable with cases of virtual alteration of a product or service (cf. BGH GRUR 2010, 346

marginal ref. 13 — Call forwarding). These cases all have one thing in common: either a

physical impact on the product or

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a service that was previously specifically addressed to the recipient remains unnoticed or is no

longer able to exert its influence. This is not the case here. In particular, this is not an

interference in the form of a software modification or other impact on the operational processes

of the Claimant or third parties working for the Claimant. Instead, from a technical standpoint,

Internet users first receive a type of table of contents when they call up a website. The

Claimant’s advertising and journalistic reports are located on different servers. These contents

are then either loaded by the different servers or not in some instances where the Defendant’s

software is used. The Claimant has not linked its website using technical measures in a way

that would prevent users from downloading news articles only if they also receive the

associated ads. Thus, the Claimant has not expressed its desire to offer all of the elements of

its website exclusively as part of a unified offer. Consequently, this type of website is not a

physically integral file. Instead it is not assembled until it reaches the user’s browser. In

particular, the Defendant’s program does not ensure that the stream of data packets sent is

disrupted, but instead that individual data packets are not accessed in the first place. Thus, no

technical safeguards are bypassed in the process. Moreover, this all transpires due to an

independent decision that lies in the Internet user’s sphere of influence.

As a result, taking into consideration the directly applicable, fundamental rights, the interests of

the Internet users and the Defendant outweigh those of the Claimant. Internet users have a

legitimate interest in the prevention of undesired advertising, protection from malicious software

and control of their data. These interests have taken a variety of forms in various laws

promulgated by the legislature. For example, section 4 the Federal Data Protection Act (BDSG)

requires the consent of the affected party before processing personal data and section 7 UWG

protects against unwanted and obtrusive advertising. In concrete terms, section 7 12 UWG

highlights advertising as an intolerable nuisance when it is delivered although it is obvious that

the intended recipients do not wish to receive it. Using ad blockers also enables users to

suppress personalized ads and prevent their online behavior from being recorded. The right to

informational self-determination is protected under constitutional law, meaning that Internet

users alone may decide which data they wish to reveal about themselves. Moreover, ad

blocking only occurs in the Internet users’ sphere of influence. They can determine for

themselves which content they wish to view. This right is protected by the negative freedom of

information in accordance with Article 5 11 GG. Therefore, the Defendant’s program

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is a tool that strengthens Internet users’ personal autonomy. Furthermore, the Defendant has

a vested interest in continuing its successful business model. This right is protected through

occupational freedom in accordance with Article 12 GG.

This result is also not contradicted by the circumstance that the distribution of press

contributions including the acquisition of direct financing through advertising is protected by

Article 5 I 2 GG (BVerfGE 21, 272, 278). The Claimant can continue its activities as a provider

of journalistic content on the Internet. The Defendant’s program also does not prevent the

Claimant from using advertising. In addition, freedom of the media as outlined in Article 5 1 2

GG is not guaranteed without restrictions. Instead, it is limited, among other things, by

conflicting basic rights and the provisions of general law. Freedom of the media therefore does

not grant permission to force undesired advertising or other content onto Internet users (Court

of Appeals (OLG) Cologne GRUR 2016, 1082, 1086 marginal ref. 46 — Adblock Plus). Internet

users are not obliged to receive advertising. No such obligation exists in the case of advertising-

financed content that is thus free for the consumer or if advertising serves to finance important

information media. Moreover, the Claimant’s worthiness of protection is restricted from the

outset. The Claimant can preclude Internet users who have enabled an ad blocker on their

computer from visiting its website. However, since the Claimant has not barred visitors from

viewing its content using technical safeguards, but instead provides free access to it via the

web, the Claimant must also tolerate use that bypasses its intended ad-based financing model

(BGH GRUR 2011, 1018, 2024 marginal ref. 69 — Automobil-Onlinebörse; GRUR 2003, 958,

961 — Paperboy).

This constellation corresponds to the results of the considerations of the Federal Court of

Justice of Germany in the case of Fernseh-Fee (BGH GRUR 2004, 877 — Werbeblocker (Ad

blockers)). Neither television ad blockers nor Internet ad blockers have a direct impact on a

product. As long as a defensive measure against advertising is initiated by the user no targeted

deterrence exists on the part of the party that merely provides the corresponding technical

aids. Despite the default settings, the user remains independently responsible for deciding the

conditions under which advertising should be blocked. Likewise, it is irrelevant what share of

users actually make modifications to the default settings. Decisive is only the sufficiently

transparent ability to modify these settings.

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This result is also not contradicted by the fact that the Defendant offers acceptance onto its

whitelist in exchange for a fee in some instances, thereby releasing the advertising for viewing.

There are no indications that this behavior constitutes a targeted attempt to deter the Claimant.

III. Sections 8, 3, 4a I UWG also do not form a basis for the injunction claim. Inadmissible

according to to 4a I UWG, which is based on Articles 8, 9 of the Guidelines on Unfair Business

Practices (2005/29/EC), are aggressive business practices that could cause consumers or

other market participants to make a commercial decision that they otherwise would not have

made. A business practice is aggressive if, in a specific case when taking all the

circumstances into consideration, it could significantly restrict the freedom of choice of the

consumer or other market participant through harassment, coercion or undue influence. Thus,

section § 4a I UWG requires that the company use one of the three means of aggression

listed below.

1. Neither harassment nor coercion can be considered as means of aggression in this case.

Harassment involves persistently addressing a party in a manner that intrudes upon the

intended recipient’s personal or business sphere. Coercion is raising the possibility of a

serious, malicious act. Neither level of aggression is reached by the Defendant’s program.

Both the targeted interference on the Claimant’s inner sphere of influence and the suppression

of the advertiser at the will of the coercing party are lacking. Whitelisting does indeed create a

significant incentive to pay to have ads released for viewing. Nevertheless, this action is not

inevitable. The Claimant is not forced to conclude the agreement and pay the fee. In addition,

requesting a fee for such services is legally admissible. This request is also not rendered

inadmissible because the fee is only due as a result of an ad being included on the blacklist

beforehand. Marketing non-differentiating ad blockers is legally admissible.

2. Similarly, there is no indication of an undue influence (German: unzulässige Beeinflussung; French: influence injustifiée) here. An undue influence can be assumed when a company exploits

a position of power vis-à-vis a consumer or another market participant in order to exert

pressure in a manner that significantly restricts a party’s ability to render an informed decision.

Merely offering advantages is not the same as exerting pressure. The ability to render an

informed decision is only limited if a company’s behavior restricts a party’s ability to obtain or

use information relevant to decision

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making. This limitation can also occur when irrational motives for the business decision a

company intends to make enter the foreground. In addition, a significant limitation is also

present if the business practice impairs judgment, i.e. the ability to recognize and weigh the

advantages and disadvantages of a business decision against one another. It is irrelevant in

this context whether the Defendant even holds a sufficiently strong position of power. In any

event, the Defendant did not exploit its position in a manner that would significantly restrict the

Claimant’s ability to render an informed decision (A.A OLG Cologne GRUR 2016, 1082, 1088

marginal ref. 61 — Adblock Plus). The Claimant was neither misled into behaving irrationally,

nor was its judgment impaired. The rationality of the decision of the Claimant is not completely

in the background due to the Defendant’s exercising its position. On the contrary, the Claimant

actually evaded the pressure exerted by the Defendant by not applying for acceptance onto

the whitelist. Moreover, there are numerous response options available to the Claimant to

counteract the current situation. Among other options, the Claimant can completely block users

with ad blockers enabled from visiting its Internet presence or at least restrict its usability in a

variety of ways. The fact that some of these options are financially unattractive is basically

unremarkable with respect to the existence of freedom of choice.

Added to this is the fact that the whitelisting option offered is also not a suitable vehicle for

exerting pressure on the Claimant, as the Defendant is only opening up an additional avenue

for the Claimant to distribute its advertising and this, in contrast, is not restricted. A Defendant

offering an advertiser, against the legitimate status of an advertising blocker without a whitelist,

an additional opportunity to generate further advertising revenue via whitelisting is not exerting

pressure. Rather, the Defendant is offering a solution that as a result would allow the advertiser

to achieve more revenues than before. The whitelisting offer puts the Claimant in a better

financial position than if the advertising were blocked entirely by the Defendant’s program.

IV. The injunction claim cannot be supported by the existence of a general disruption of the

market. From a factual perspective, a behavior is only a market interference if it restricts the

growth of not only one individual business operator, but a number of businesses equally.

However, a disruption of the market does not exist until a competitive behavior poses a serious

threat of significantly restricting competition that rests on business

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activity. As a result, the behavior must be suited for driving a specific type of offer from the

market (OLG Cologne GRUR 2016, 1082, 1087 marginal ref. 48 — Werbeblocker (Ad

blockers)). This is not the case here. It is not evident that the Defendant’s program is

responsible for driving journalistic reports from the Internet. Adblock Plus does indeed impair

the Claimant’s traditional financing model. However, there is no evidence that it renders the

Claimant unable to publish journalistic content on the web. For example, the Claimant can use

technical measures to preclude Internet users who have enabled an ad blocker on their

computer from visiting its website. Moreover, paid web content offers are conceivable and

already exist in the marketplace. Furthermore, the Defendant’s program has been available

since 2006 and has not significantly impacted the competitive environment thus far. The

prohibition of a general disruption of the market secures neither the status quo nor existing

assets by sustaining a compensation model that has been successful to date. Provided there

are no special grounds for unfairness, it is inherent to free competition that existing structures

shift and companies must react to new user behavior and changed market conditions. The

admissibility of a new business dealing does not require justification – its prohibition does.

V. Sections 33, 18, 19 GWB also do not form a basis for the injunction claim. Section 19 1

GWB forbids the abuse and exploitation of a dominant market position. This prohibition of

abuse under antitrust law applies alongside section 4 no. 4 UWG. In the present case it is

irrelevant how the respective market is delineated and whether the Defendant has a dominant

position in this market. In any case the Defendant is not abusing its position.

1. There is no undue interference in the sense of section 1911 no.1 AIt.1 GWB. In an objective

sense, interference is considered to be any impairment of a company’s ability to compete in

the marketplace. Not every financial disadvantage that a business experiences in the market

can be construed as an undue interference in its ability to compete under antitrust law. There

are no apparent aspects in this case that would make the Defendant’s program appear to be

unfair. Rather, marketing an ad blocker is generally legally permissible.

2. There is no discrimination in the sense of section 19 II no.1 AIt.2 GWB. The Claimant is not

being treated differently than similar companies without good reason. The criteria for

acceptable advertising apply uniformly to all advertisers. In addition, neither the

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variable fee nor the privilege of operators of smaller websites presents a case of discrimination.

The Defendant’s success-based fee model results in various business partners remitting

various sums in various billing months. There is already no similarity between the Claimant and

the privileged websites. In addition, different treatment would be justified due to the different

level of expenditure and income generated alone.

3. There is also no exploitative abuse in the sense of section 1911 no. 2 GWB. Such

exploitative abuse occurs when a dominant market participant demands compensation or other

business terms and conditions that deviate from what they would in all likelihood be in

circumstances where competition is healthy. There is no evidence that success-based

participation in additional advertising revenue in the amount of 30 percent presents an

excessive remuneration claim. This billing model is popular throughout the Internet.

4. Cause for granting an advantage pursuant to section 19 II no. 5 GWB or abusive exploitation

of a dominant position in the market in the sense of the general clause of section 191 GWB is

also not apparent.

Vl. Section 823 BGB does not form a basis for an injunction claim. There is no direct

infringement in the Claimant’s business that would justify claims of illegal infringement upon the

protection of an established and operating commercial business. Section 826 BGB also does

not form a basis for an injunction claim. No adequate aspects are evident that the Defendant’s

behavior presents intentional, unethical damage to the Claimant.

VII. In the absence of any legal violation on the part of the Defendant, the Claimant has no

right to information or claim to have the court determine liability for damages.

VIII. The decision on costs is based on section 91 of the German Civil Procedure Act (ZPO)

and the decision regarding provisional enforceability is based on section 709 ZPO.

315 0 293/15

Signed

Presiding Judge Judge Judge at the District Court at the District Court at the District Court

Hamburg, November 28, 2016