Liberation, Not Extortion: The Fate of Internet Ad-Blocking in German and American Law

Abstract

Ad-blocking services allow individual users to avoid the obtrusive advertising that both clutters and finances most Internet publishing. Ad-blocking’s immense — and growing — popularity suggests the depth of Internet users’ frustration with Internet advertising. But its potential to disrupt publishers’ traditional Internet revenue model makes ad-blocking one of the most significant recent Internet phenomena. Unsurprisingly, publishers are not inclined to accept ad-blocking without a legal fight. While publishers are threatening suits in the United States, the issues presented by ad-blocking have been extensively litigated in German courts where ad-blocking consistently has triumphed over claims that it represents a form of unfair competition. In this article I survey the recent German ad-blocking cases and consider the claims publishers are likely to raise against ad-blocking in the imminent American litigation. I conclude that, when the American ad-blocking cases come, they are bound to meet with the fate they suffered in Germany. I argue that the relevant German and American legal frameworks reinforce a similar set of values, including: respect for individual autonomy; recognition of the broad social benefits ad-blocking can generate; and an insistence that publishers accept ad-blocking as part of the free market in which they must evolve and innovate in order to compete.