Ad blocker

Ad blockers – the Federal Court of Justice is awaiting a ruling from the European Court of Justice.

Axel Springer Verlag has filed a lawsuit with the Federal Court of Justice (BGH) against the use of the ad blocker Adblock Plus, alleging a violation of its copyrights. The BGH has now postponed its ruling on this matter, as it is awaiting a decision by the European Court of Justice (ECJ) in a similar case.

What's it about?

Many online users find the ads they encounter while browsing to be intrusive and annoying. Ad blockers such as “Adblocker Plus” are browser extensions that block advertising elements such as banner ads, pop-ups, and promotional videos.

Free-to-access online media, in particular, rely on such advertising to fund their content. In this respect, ad blockers threaten their business model, which is why Springer is attempting to take legal action against them.

What are ad blockers?

An ad blocker detects advertisements and prevents them from appearing on users' screens.

This process analyzes a website's source code and identifies elements that constitute advertisements.

One option, for example, is to use specific commands—so-called “tags”—in HTML. Another option is to check the URL. If the web server’s address can be linked to an ad provider, the loading and display of related content is blocked.

What has Springer already done in this regard?

Axel Springer had attempted to argue that Eyeo’s ad blocker constituted a violation of competition law. Even the fact that Eyeo accepted payment from companies in the advertising industry to ensure that their ads were not filtered out but instead presented to users as acceptable advertising was not sufficient for the Federal Court of Justice (BGH). In its April 2018 ruling, BGH, April 19, 2018 – I ZR 154/16, the court essentially held that the decision to use an ad blocker rests with the website user and not with the defendant company.

What is the specific legal charge?

The current case concerns the legality of ad blockers under copyright law. Specifically, the issue is whether ad-blocking software modifies or reproduces the website’s code, thereby infringing on the website operator’s copyright.

In particular, Sections 69a and 69c of the German Copyright Act (UrhG) are at issue here.

Ad blockers would alter the HTML code of websites, which would constitute a copyright infringement.

To date, neither the Hamburg Regional Court nor the Hamburg Higher Regional Court has accepted this line of reasoning. The Federal Court of Justice has now suspended its decision on this matter for the time being, as the European Court of Justice is set to rule on a similar case in October.

Please contact us if you have any questions