The Hamburg District Court dismissed a claim brought by Spiegel Online GmbH against Eyeo GmbH, the developer of the Adblock Plus browser extension. Spiegel Online alleged that Adblock Plus violated competition law by blocking most of the ads on Spiegel Online's websites, while allowing ads on some sites that paid a fee. The court found that since Spiegel Online did not implement technical measures to only provide its content and ads together as a unified offering, Eyeo was not violating its rights by blocking some ads. Eyeo argued its fee structure and whitelisting process were justified based on administrative costs. The court ruled in favor of Eyeo and dismissed the claim.

1. 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

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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

3. 3
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

4. 4
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

5. 5
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

6. 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
6

7. 7
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

8. 8
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].

9. 9
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.

10. 10
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.

11. 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
11

12. 12
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

13. 13
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.

14. 14
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

15. 15
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

16. 16
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

17. 17
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.

18. 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