OLG Hamburg: Antitrust assessment of automated Google Ads blocks

Legal classification of the Google Ads blocking in the light of antitrust law

In a recent decision, the Hanseatic Higher Regional Court of Hamburg (Case No. 15 U 18/23 Kart) examined the automated blocking of Google Ads ads from an antitrust perspective. This ruling offers an interesting perspective on Google’s dominant position in the market for keyword-based online advertising. The decision clarifies that an automated rejection of advertisements, in this case specifically for electronic vignettes, can be considered an unfair obstruction of a company if it is not based on objective reasons.

The court emphasizes: “In the case of a distribution system, the principle derived from entrepreneurial freedom of action is recognized as the starting point for weighing up interests that the prohibition of obstruction does not in principle prevent the norm addressee from structuring its business activity and its sales system at its own discretion in the way it considers economically sensible and correct.” (para. 72). The unequal treatment of the applicant in comparison to its competitors, who were allowed to continue placing their advertisements, was also addressed.

The court recognized that although Google has the fundamental right to design its advertising platform according to its own ideas, this right is limited by antitrust regulations, especially when it comes to dealing with dominant market positions. The court’s decision underlines that the automated blocking of ads without individual examination and without objective justification is an inadmissible practice. This is all the more true if it puts smaller or specialized companies that rely on search engine visibility at a disadvantage.

It is also interesting to note that the court found that the defendant had actively supported the applicant’s advertisements in the past, which makes the sudden and indiscriminate blocking appear even more questionable. The court pointed out that a dominant market position entails particular responsibility and that companies such as Google must assume this responsibility when dealing with advertising customers.

Overall, the judgment of the Hanseatic Higher Regional Court of Hamburg provides a detailed analysis of the antitrust aspects in the context of digital advertising platforms and thus sets important standards for the future of online advertising. It emphasizes the need for fair and transparent handling of advertisements, especially in a market dominated by a few large providers.

Outlook: Possible effects on other digital platforms

The decision of the Hanseatic Higher Regional Court of Hamburg could also be relevant in other digital contexts. The antitrust law considerations can possibly be transferred to cases involving the automated blocking of social media accounts, such as Instagram, or the deletion of online reviews. Similar arguments could come into play, especially if such measures are taken by market-dominating platforms. This points to a development in which the rights of smaller companies and individuals in the digital space may be strengthened to promote a more balanced digital marketplace.

The potential transferability of these antitrust principles to the practices of social media platforms and other online services could mark a turning point in digital law. In particular, the focus is on promoting fairness and transparency. This could mean a significant change for smaller companies and individuals who may have suffered from the dominance of large platforms in the past. Applying the principles of this judgment to other areas of the digital market could lead to fairer treatment and challenge the concentration of power in a few large providers.

This approach could fundamentally change the landscape of digital marketing and online interactions. It opens up the possibility that future legal disputes will increasingly take into account the interests of smaller players and thus contribute to a more balanced and fairer digital environment. The decision of the Hanseatic Higher Regional Court of Hamburg could therefore be significant far beyond this specific case and serve as the basis for a new direction in the regulation of digital platforms.

For more information and details on the judgment of the Hanseatic Higher Regional Court of Hamburg (Case No. 15 U 18/23 Kart), you can view the full judgment here.

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.