Adblock II decision: Reason is there

The Federal Court of Justice has published the full reasoning of the Adblock II decision ( I ZR 154/16 ). The tenor was

a) The offer of software that enables Internet users to suppress the display of advertising when calling up Internet offers financed by advertising does not constitute an unfair targeted obstruction within the meaning of Section 4 No. 4 of the German Unfair Competition Act (UWG). This shall also apply if the program provides for the activation of certain advertising by advertisers who pay the provider of the program a fee for this.

b) The offer of an ad blocker software also does not constitute an aggressive commercial act within the meaning of § 4a para. 1 UWG against the companies involved in the placement of advertisements.

The BGH justified this by stating that the Adblock software did not hinder the economic development of the plaintiff, Axel Springer Verlang, and that the provider of Adblock also had no intent to cause damage.

3. the Court of Appeal rightly assumed that the offer, distribution and maintenance of the A. program by the defendants did not constitute a targeted obstruction pursuant to Section 4 No. 4 UWG (Section 4 No. 10 UWG aF).
a) According to the provision of Section 4 No. 4 UWG, which replaced Section 4 No. 10 UWG aF with effect from 10 December 2015 without any change in substance (cf. December 2015, which replaced Section 4 No. 10 UWG aF
(see BGH, judgment of January 12, 2017 – I ZR 253/14, GRUR 2017, 397 marginal no. 48 = WRP 2017, 434 – World of Warcraft II, mwN), anyone who deliberately hinders competitors is acting unfairly. Unfair obstruction of competitors requires an impairment of the competitors’ competitive development opportunities that goes beyond the impairment associated with any competition
and has certain unfair characteristics.

In general, unfairness is deemed to exist if the purpose of the interference is to prevent competitors from developing their business and thus to displace them, or if the interference results in the impaired competitors no longer being able to adequately promote their performance on the market through their own efforts. Whether these requirements can only be assessed on the basis of an overall assessment of the circumstances of the individual case, taking into account the interests of competitors, consumers and other market participants as well as the general public (established case law).see BGH, judgment of March 12, 2015 – I ZR 188/13, GRUR 2015, 607 para. 16 = WRP 2015, 714 – Uhrenankauf im Internet; judgment of June 23, 2016 – I ZR 137/15, GRUR 2017, 92 para. 14 = WRP 2017, 46 – Fremdcoupon-Einlösung; BGH,
GRUR 2017, 397 para. 49 – World of Warcraft II).

For me as a games lawyer, this reasoning is particularly interesting, because the BGH cites the decision “World of Warcraft II”, which I challenged, but does not make a distinction or take a position on where exactly the difference is to a bot software. Especially since, neutrally speaking, it can really be doubted whether Adblock does NOT harm website operators and also does NOT restrict their economic freedom of operation.

This is especially true with regard to this sentence:

The Court of Appeal stated that an intent to cause damage could not be established because economic damage suffered by competitors as a result of competitors’ offers was inherent in competition and there was also no presumption of an intent to cause damage.

Of course, this also applies to bot software for online games, which can be offered all the more successfully the more successful the online game itself is.

The same applies to the statement of the BGH:

Not unlike in cases of advertising hindrance (cf. BGH, GRUR 2017, 92 marginal no. 21 – FremdcouponEinlösung), an impairment that only arises as a result of the free decision of another market participant does not in principle constitute an unfair hindrance.

Also in cases of the use of bot software, an autonomous decision of a third market participant, namely the user of the bot software, intervenes.

One difference with the World of Warcraft II decision is the possible undermining of a safeguard.

The provision of a product that has an effect on a competitor’sproduct that has an effect on a competitor’s product if a protective measure is undermined that is intended to prevent such an effect on the product
(see BGH, judgment of June 22, 2011 – I ZR 159/10, GRUR 2011, 1018 para. 67 to 70 = WRP 2011, 1469 – Automobil-Onlinebörse; GRUR 2014, 785 para. 37 – Flugvermittlung im Internet; GRUR 2017, 397 para. 68 – World of Warcraft II).

The full reasoning can be found here(BGH – I ZR 154-16 – Werbeblocker II). The further delimitation of similar cases and business models, and thus the further development of the obstruction of justice, is likely to remain very exciting in the coming years.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.