Debate Surrounding the Contentious Nature of Adblockers
In a significant turn of events, the Federal Court of Justice (BGH) in Germany has overturned a lower court's decision in the ongoing legal dispute between media giant Axel Springer and Adblock Plus. The case, involving the Adblock Plus software developed by Cologne-based company Eyeo, has been sent back to the Hamburg Higher Regional Court for a new trial and decision.
The BGH found that the Hamburg court's ruling did not sufficiently substantiate its decision that Adblock Plus's modification of website display did not infringe copyright. The court has directed the Hamburg court to re-examine whether altering the DOM node tree and CSS structures, considered by Springer as copyright-protected expressions, constitutes copyright infringement under computer program protection laws.
Adblock Plus works by analysing the source code of websites and identifying elements that represent ads, such as certain commands ("tags") in the HTML language of the website. It also examines the addresses ("URLs") of web servers. If the address is associated with a server of an advertising industry service provider, it prevents content from being loaded and displayed from there.
Axel Springer is relying on copyright law, claiming that ad blockers alter the programming codes of websites and infringe upon the copyright-protected offer of media companies in a manner that violates the constitution. Eyeo, however, continues to stand for the protection of user freedom and digital self-determination.
In the first attempt before the BGH, Axel Springer tried to stop Adblock Plus with an antitrust lawsuit. However, the BGH ruled that Eyeo's offering did not constitute unfair competition or illegal aggressive business practices. The BGH also did not object to the fact that Eyeo had received money from advertising firms to allow their ads to pass through Adblock Plus as "acceptable advertising" instead of being filtered out.
The Hamburg court's findings on the question of whether the underlying code has been interfered with are "unclear and contradictory," according to the presiding judge, Thomas Koch. Springer considers the ruling a major success for the protection of online journalism.
Financial damages to media offerings due to ad blockers are in the millions, according to Springer's lawyer Thomale. The BGH criticized the OLG ruling for not being clear on which protected subject matter it was based and for not sufficiently considering Springer's statements regarding the particularities of a browser.
Eyeo remains convinced that no company should be allowed to prohibit users from determining their own browser settings or force downloads of content or tracking. The BGH initially announced it would wait for a ruling from the European Court of Justice (ECJ) on a similar case, but the ECJ's decision did not play a role in the announcement of the ruling now.
The BGH has questioned whether altering the DOM node tree and CSS structures, as done by Adblock Plus, infringes upon copyright protection laws, given the concerns by Axel Springer that such actions interfere with their copyright-protected media offerings. Axel Springer continues to argue for the protection of online journalism, while Eyeo advocates for user freedom and digital self-determination, believing that no company should control browser settings or force content downloads.
