Mise à jour
Mise à jour de la base de données, veuillez patienter...
Legal Corner: The War on Ad Blockers – Axel Springer’s Assault on User Freedom
For many internet users, an adblocker is an important piece of software that allows them to control the digital information they receive from their browsers, providing the option of an ad-free browsing experience. Despite this, a recent decision by the German Federal Court of Justice is giving Axel Springer a second chance to erode user freedom.
CC-BY-NC-SA by
Rahak
The original lawsuits brought by Axel Springer
We wrote in 2023 about the outcome of a series of suits filed by Axel Springer SE (Axel Springer), one of Germany’s largest media and publishing companies, against Eyeo GmbH (Eyeo), the creator of Adblock Plus. Eyeo and Adblock Plus prevailed in the courts back then, allowing for the continued use of adblockers such as Adblock Plus by internet users in Germany. A new recent decision by the German Federal Court of Justice has unfortunately given Axel Springer a second chance to make its arguments against adblockers.
Adblock Plus is a Free Software browser extension licensed under the GPLv3 that allows its users to bypass ads and pop-ups when accessing websites, for an ad-free internet browsing experience. This was done according to filter rules maintained in a so-called “black list”, which users use as a default setting. The extension offers ad providers the possibility of having their ads excluded from this black list (and included in a “white list”) by complying with “acceptable advertising standards”, disclosing their annual turnover, and paying a fee to Eyeo. Users will then only see ads that have been included in the white list, although they also have the option of blocking ads from both white and black lists altogether if they so choose.
Axel Springer’s legal complaints in their suits against Eyeo were on the grounds that how the Adblock Plus extension functioned constituted:
- targeted obstruction and aggressive business practice; and
- a violation of freedom of the press.
Back then, the Hanseatic Higher Regional Court (the HansOLG) in Hamburg ruled in favour of Eyeo. In doing so, they stated that using adblockers such as the Adblock Plus extension is a decision that users are entitled to freely make, as user rights not only include the freedom to express an opinion and to receive information, but also the rights to refrain from expressing an opinion, and to refuse receiving imposed information. This meant that Adblock Plus’s business model was a marketable service offer not primarily aimed at impairing the competitive development of Axel Springer. Adblock Plus therefore constituted a product whose use is decided solely by the internet user, and does not directly interfere with Axel Springer’s business.
Axel Springer’s current re-litigation of user freedom
This brings us to the unfortunate current situation. After the HansOLG ruling in 2023, Axel Springer appealed this ruling to the German Federal Court of Justice (the BGH), which led to the BGH issuing a judgment on 31 July 2025 allowing the case to be remanded back to the HansOLG.
Specifically, the BGH held that Axel Springer’s exclusive rights to reproduce and modify their computer programs, granted to them under Section 69c of the German Copyright Act (the UrhG), can possibly be infringed by an ad-blocker. In a situation where a browser and its engines are not controlled via object code, but by bytecode from which the browser’s virtual machines generate object code, the BGH stated that such bytecode (or the code generated from it) may be protected as a computer program. The BGH was of the opinion that if a third party computer program, such as adblockers like Adblock Plus, alters this code in the course of reproduction, this may possibly infringe upon the exclusive rights provided for by the UrhG.
It is important to note that the BGH’s statements here about bytecode and object code are merely speculative, and what the BGH thinks to be a possible interpretation of German copyright law. The actual substance of the BGH’s ruling is to compel the lower court of the HansOLG to re-consider the case for further fact finding. In other words, it is the responsibility of the HansOLG to definitively state what the actual interpretation of German copyright law is.
What this also amounts to is that Axel Springer has essentially been given a second opportunity in the court system to question the legality of adblockers. In this second opportunity, the actual interpretation of the law that the HansOLG now has to produce will be influenced by the direction given by the BGH to focus on Axel Springer’s arguments about whether the DOM, CSS, and bytecode are to be considered as protected computer programmes under the UrhG, and whether an adblocker’s modifications of these elements amount to a violation.
The implied conflict of corporate vs user freedoms: a balancing of rights
Back in the original suit before the HansOLG, Axel Springer’s arguments were that their websites could be protected under German copyright law as a copyrighted computer program, and that their HTML code would come under this same protection because of the control components it included. Because of how Adblock Plus interacts with their websites, Axel Springer therefore claimed that copies and adaptations of the code amounted to violations of the copyright protections preventing modification and reproduction.
Axel Springer’s line of argumentation was rejected in the HansOLG’s ruling in 2023. The court ruled that the use of Adblock Plus solely affects the program flow through external commands, without altering the program’s essence or generating a changed version. The use of the Adblock Plus extension therefore results in what was deemed at the time to be a mere browser configuration carried out by users according to their preferences.
It is therefore interesting to compare and see the different perspectives taken in the judgement issued by the HansOLG in 2023, and the appeal judgement by the BGH this past July. The HansOLG’s judgement seems to take a firm view of user freedoms, particularly placing greater weight on an individual internet user’s freedom to configure their browsing experience, and their rights to third party software to do so. Conversely, the ruling of the BGH seems to be hyperfocused on questions of ownership of copyrights, and the technicalities of how adblocker code can interfere with such copyrights.
Legal disputes often arise because two parties are trying to exercise rights that come into conflict with each other, and the resolution of such disputes come about when the courts find what they deem to be a satisfactory balancing of rights within the context of the law. Finding a satisfactory balance will depend on how much weight or importance the court gives to each right argued by the parties. In this situation, in our opinion it seems that the BGH is remanding the case back to the lower courts as it is uncertain about the question of which is more important:
- The rights of internet users to control, configure, and filter the type of information that they receive when using the internet; or
- The rights of Axel Springer as a website creator to have the exact configuration of content on their website to be delivered unchanged to an internet user, in the extent to which it is protected by copyright.
For this reason, we are of the opinion that the HansOLG made the correct call in prioritizing user freedoms in their 2023 ruling, and hope that the court will find the same outcome in this second round of trial.
Consequences of a possible pro-Axel Springer verdict
The immediate goals of Axel Springer in this court battle can be said to be the effective disabling of the use of Adblock Plus when viewing Axel Springer produced websites. Nevertheless, it is important to keep in mind that the effects of legal verdicts are often not limited to just the immediate parties. In many cases, the court’s reasoning and interpretation of the law can have larger societal effects than just on the immediate subjects of each case. A court ruling rarely affects just the specific topic of the verdict; more often than not the philosophical underpinnings in a judicial reasoning is its legacy and lasting impact.
A pro-Axel Springer verdict therefore could have disastrous consequences on user freedom for German internet users. While the immediate effect of the case may be that internet users will no longer be able to use Adblock Plus to block ads on Axel Springer websites, the broader reasoning behind such a decision could open the doors for any website with ads to benefit from such a ruling as well. This could effectively spell the end for internet users in Germany to effectively block unwanted ads on all websites beyond just Axel Springer’s, by rendering adblockers illegal in Germany.
Additionally, the BGH’s insistence on focusing on examining whether copyrights are preserved through the alteration of bytecode (or the code generated from it) by third party computer programmes can possibly be applied in the future for other web apps or extensions beyond just adblockers. There are many such apps and extensions in existence today that allow users to customize their internet browsing experience, including some that allow users to preserve their freedoms and rights in other areas.
For example, the Free Software extension Privacy Badger (licensed under the GPL3-or-later), maintained by the Electronic Frontier Foundation, blocks hidden trackers to help users stop companies from harvesting personal data. If apps such as Privacy Badger are deemed by the courts to alter copyrighted code in the same way as Ad Blocker Plus, a pro-Axel Springer verdict could therefore work to prevent the use of programmes that internet users use to protect their privacy, security, and autonomy.
Existing problems in the 2023 verdict
It is nevertheless also important to note that, while the support for user freedom by the HansOLG judgement in 2023 was certainly welcome, this verdict is not without its faults. Although it supported user freedom to configure browsing activity, the HansOLG nevertheless preserved Axel Springer’s right at the time to exclude users with an activated adblocker from accessing its content. This can be understood to be an approval of the use of adblock detection tools by companies like Axel Springer to exclude user access to information. Indeed, Axel Springer has deployed such tools on a number of its websites, which significantly hinder a user from accessing its content if an adblocker is used.
This is a particularly unfortunate aspect of the 2023 verdict, as tools to detect the use of adblockers are in violation of Art. 5(3) of the ePrivacy Directive, which mandates that websites must seek consent before accessing or storing information about the user’s device. Such information includes scripts in the terminal equipment of users to detect if they have installed, or are using adblockers.
Open possibilities in case of a ruling
This ongoing saga is yet another example of how our rights and freedoms are not immutable. Rather, they require effort to be maintained, and constant vigilance to ensure their preservation, especially against entities that are incentivized to erode them for profit.
That being said, court cases are very much insulated in nature; apart from those immediately involved in the litigation, there tends to be little that the average member of the public can do to directly affect the outcome of a specific case, regardless of how much the verdict of such case may affect third parties. Nevertheless, if a pro-Axel Springer verdict is reached, action can still be taken afterwards.
One option available would be an appeal to the European Court of Justice (the ECJ) on the grounds of a violation of the aforementioned ePrivacy Directive. While this does not necessarily reverse any adverse ruling on adblockers that the current case before the HansOLG may bring, an ECJ ruling that explicitly declares tools detecting the use of adblockers to be a violation of the ePrivacy Directive would be useful to make enforcement of an adblocker prohibition much more difficult, and would be a useful legal tool in the fight to support user freedoms.
Additionally, such a verdict can be countered by working towards policy goals that enact legislation (whether in Germany, or EU wide), that prioritize the protection of user freedom, security, and independence when using the internet, and other digital services and technology.
If you have a legal or licensing question related to Free Software that is not covered here or in any of our other resources, you can consider asking our License Questions team by sending them an email at licence-questions@fsfe.org.
First "I Love Free Software Day" celebrations in Potteries.
"I Love Free Software Day" celebrations in Potteries.
Photo by SumUp on Unsplash