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We reported on this on 20 November 2015:
After a number of media companies have already failed with lawsuits against the ‘Adblock Plus’ software, Springer-Verlag has now tried an injunction against the ‘Blockr’ programme.
WELTN24 GmbH had filed an application for a temporary injunction against the developers of ‘blockr’ at the Regional Court of Stuttgart via its lawyers Lubberger Lehment without prior warning.
As already announced one day after the hearing in our article of 20 November 2015, the 11th Chamber of the Regional Court of Stuttgart had already indicated at the hearing that it would follow our reasoning and reject the application.
Stuttgart Regional Court rejects application by Springer-Verlag
As of today, we have the judgement of the Regional Court of Stuttgart (LG Stuttgart, Urteil v. 10.12.2015, Az. 11 O 238/15). As announced, the court rejects the application for a temporary injunction.
The most important 4 points at a glance
- An ad blocker does not directly interfere with the welt.de website.
- The business model of free content with advertising is not legally protected.
- The WELT can – as BILD already does, for example – exclude users with ad blockers switched on from using its content.
- It is up to WELT to convince visitors to the website that it is worth either accepting advertising for the content provided or switching off the ad blocker or paying for the content without advertising.
No direct interference with the content of welt.de
In its relatively brief reasoning, the Chamber stated that, contrary to its opinion, a direct interference with the applicant’s offer could not be established. Due to the technical composition of a website, the individual parts of which are only finally put together in the user’s browser, the user has the right – within their sphere of influence – to decide which content is displayed to them and how. Manipulation of the applicant’s content is therefore ruled out. Therefore, the balancing of interests always required in the context of Section 4 No. 11 UWG is also in favour of the defendant.
The business model of free content with advertising is not protected
Of particular interest is the court’s finding that although an ad blocker restricts the applicant’s business development opportunities, this is acceptable because the business model of providing free content along with advertising is not protected as such. welt.de could also, as bild.de already does for example, exclude users with an ad blocker switched on from using the content:
‘It (the plaintiff in the injunction, author’s note) is not forced to accept the use of ad blockers and to make its website available free of charge to users who use ad blockers. It can exclude such users from using the website without further ado. The argument that this would result in an even greater loss of advertising revenue falls short of the mark. It may be that the exclusion is associated with a loss of revenue, at least in the short and medium term. However, freedom of competition applies here in principle: a specific business model as such is not protected under competition law. It is up to the plaintiff in the injunction, in the context of competition, to convince visitors to the website that it is worthwhile either to accept advertising for the content provided – and to include the plaintiff’s site in the ‘whitelist’ or to switch off the ad blocker or to pay for the content without advertising.’
The decision can be challenged on appeal. In addition, Springer can assert its alleged claims in a main action. In view of the persistence with which Springer-Verlag has pursued its case in the other known cases, it can be assumed that the dispute here is not yet over.
Lawyer Dr Niklas Haberkamm, LL.M. oec. on the judgement:
‘In line with our arguments, the Stuttgart Regional Court expressly clarifies in its judgement that our clients’ ad blocker “blockr” is not objectionable under competition law. At the same time, the judgement states that the business model of WELT24 GmbH as such is not protected under competition law. This success is to be rated higher than the successes of the Springer subsidiary in similar cases before various chambers of commerce in Frankfurt, in particular because in the Frankfurt proceedings only the applicant has been able to make submissions to date and, in contrast to the judgement of the Regional Court of Stuttgart, these are therefore decisions exclusively in one-sided proceedings without an oral hearing. The grounds for the judgement of the Regional Court of Stuttgart are therefore much more in-depth and comprehensive than in the Frankfurt proceedings.’
UPDATE 17.6.2016: WELTN24 GmbH has withdrawn its appeal before the Higher Regional Court of Stuttgart, meaning that the dismissive judgement in favour of the developers of ‘Blockr’ is now formally final.
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