The FCO and the Austrian Federal Competition Authority (“FCA”) closed a joint probe of an agreement between the German-based ad blocker company Eyeo and Google after the companies had changed certain terms of their whitelisting contract. Following complaints about Eyeo’s ad blocker Adblock Plus, the FCA had launched an investigation in Austria in 2013. FCO subsequently joined the proceedings in May 2016.
Eyeo’s Adblock Plus software allows users to block advertisements from websites they visit. For a fee, Eyeo, however, offers advertisers to exclude certain types of advertisements from the ad blocker under a so-called “whitelisting contract”. Unless users change their personal Adblock Plus settings, this whitelisting allows advertiser’s content to be shown on websites if they meet certain criteria for being acceptable. Google is one of the advertisers who pays for Eyeo’s whitelisting services.
In line with the FCJ’s case law, the competition authorities reiterated that both ad blockers and whitelisting are generally legal. However, they took the preliminary position that certain terms in Eyeo’s whitelisting contract with Google were anticompetitive, because they limited Eyeo’s ability to invest, expand, or further develop its products. Against this background, Eyeo and Google voluntarily agreed to amend those terms.