UPDATED A recent ruling by the German Federal Court of Justice (BGH) has reopened the possibility that using ad blocking software could violate copyright law in Germany.
In a decision last month, the BGH – the final court of appeals on civil and criminal matters – partially overturned an appeals court decision in an 11-year legal dispute brought by publisher Axel Springer against Adblock Plus maker Eyeo GmbH.
The legal dispute dates back to 2014 when Axel and Springer first started fighting. The initial complaint was a competition lawsuit, resolved by the BGH in 2018. In parallel, Springer sued over copyright.
The ruling says that the appeals court erred when it determined that the use of ad blocking software does not infringe on a copyright holder's exclusive right to modify a computer program.
Springer has argued – unsuccessfully so far – that its website code falls under the control of the German Copyright Act. So modifying the web page's Document Object Model (DOM) or Cascading Style Sheets – a common way to alter or remove web page elements – represents copyright infringement under the company's interpretation of the law.
The appellate court that initially heard and rejected that argument will now have to revisit the matter, a process likely to add several years to a dispute that Eyeo believed was settled seven years ago.
Eyeo did not immediately respond to a request for comment. While it offers ad blocking software, the company generates revenue from ads through its Acceptable Ads program – advertisers pay to have ads that are "respectful, nonintrusive and relevant" exempted from filtering. Non-commercial open source projects like uBlock Origin rely on community support.
Philipp-Christian Thomale, senior legal counsel for Axel Springer, celebrated the ruling in a post to LinkedIn, calling it "a true milestone in the copyright protection of software – especially with regard to cloud-based applications (SaaS)."
Among the implications, he argues, is that "software providers will be better equipped to defend against manipulation by third-party software."
While the outcome remains undecided, Mozilla senior IP & product counsel Daniel Nazer worries that if the German courts ultimately uphold the copyright claim, that will hinder user choice on the internet.
"We sincerely hope that Germany does not become the second jurisdiction (after China) to ban ad blockers," he wrote in a blog post on Thursday.
"This will significantly limit users’ ability to control their online environment and potentially open the door to similar restrictions elsewhere. Such a precedent could embolden legal challenges against other extensions that protect privacy, enhance accessibility, or improve security."
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Ad blocking, or more broadly content blocking, can save battery life on mobile devices, improve page load times, reduce bandwidth consumption, and protect against malicious ads and nation-states that use ads for offensive cyber operations. The US Federal Bureau of Investigation in 2022 advised, "Use an ad blocking extension when performing internet searches," as a defense against malicious search ads.
And as Nazer observes, there are many reasons other than ad blocking that one might wish to alter a webpage, such as improving accessibility, evaluating accessibility, or protecting privacy.
However, online advertising is also one of the primary ways that publishers pay their bills. Ad blockers prevent those publishers from earning the revenue they may need to stay in business.
Alexander Hanff, managing director of privacy and data protection consultancy Hanff & Co. AB and occasional contributor to El Reg, said he thought that the ad blocking issue had already settled, noting that he served as a lobbyist and consultant for Eyeo from 2015 through 2018 and attended some of the relevant court cases.
"If the German Supreme Court rules that this is a copyright violation then they would be in direct breach of TFEU [Treaty on the Functioning of the European Union] as such a judgment would not comply with EU law," he told The Register in an email, pointing to Recital 66 of 2009/136/EC.
Hanff said he was told in writing around 2016 by the EU Commission's Legal Services that "ad blockers and other such tools absolutely fall into the category of 'appropriate settings of a browser or other application' as a means of providing or refusing consent for such technologies (adtech)."
Hanff suggested that someone file an amicus brief to inform the Court that a judgment against ad blockers would open Germany up for Infringement Proceedings under the TFEU.
In a statement provided after this story was filed, Cornelius Witt, director of global public affairs for Eyeo, said, "We remain convinced that no company should prohibit users from determining their own browser settings or force them to download content or accept tracking. Acknowledging the decision by the Bundesgerichtshof (BGH), we are now reviewing the verdict in detail. We remain committed to protecting user freedom and will continue to defend digital self-determination."®
Updated at 1537 UTC to include statement from Eyeo and clarify the number of cases Springer brought against Eyeo.