Why ad blockers are so controversial

Intrusive online advertising annoys many users. That’s why you use ad blockers to suppress banner ads. In doing so, you also cut off important revenue streams for website operators.

Germany’s largest publisher, Axel Springer, has been trying to legally stop the ad blocker Adblock Plus for years. After a setback before the Federal Court of Justice (BGH) in 2018, the case now ended up in Karlsruhe again. Before the judges make their decision, further negotiations will take place next year. Questions and answers about a fundamental conflict on the Internet:

What is the subject of the controversy?

The case before the BGH concerns the Adblock Plus software from the Cologne company Eyeo, which blocks advertising on websites. The ad blocker detects and removes advertisements before they are displayed on the user’s screen.

How do ad blockers work in detail?

An ad blocker analyzes the source code of the website and identifies elements that represent advertising. These can be certain commands (“tags”) in the website description language HTML. The ad blocker also examines the addresses (“URLs”) of web servers. If the address is assigned to the server of a service provider in the advertising industry, content is prevented from being loaded and displayed from there under certain conditions.

What was the first case before the BGH about?

In the first attempt, Springer tried to stop Adblock Plus with a competition law suit. However, in its ruling from April 2018, the BGH did not see the Eyeo offer as unfair competition or as an illegal, aggressive business practice. The decision about the use of the ad blocker lies with the user of the website and not with the defendant company. (I ZR 154/16) The BGH was also not bothered by the fact that Eyeo had collected money from advertising companies so that their ads were not filtered out by Adblock Plus, but were allowed through as “acceptable advertising”.

How does Springer argue in the second attempt?

Springer is basing its new attempt on the copyright that the publisher owns to the HTML codes. HTML stands for HyperText Markup Language and is the standardized markup language used to create and structure content on web pages. “Ad blockers change the programming codes of websites and thus directly interfere – we mean: in violation of copyright law – with the constitutionally protected offerings of media companies,” says Philipp-Christian Thomale, Senior Legal Counsel at Axel Springer National Media & Tech.

What economic damage does Springer see from ad blockers?

Springer manager Thomale says that ad blockers not only damage a central funding basis for journalism, but also endanger open access to opinion-forming information on the Internet in the long term. “On our path to Digital Only, digital advertising revenues, along with digital subscriptions, are the most important pillar in order to continue to operate independent journalism profitably in the future. This is exactly what ad blockers try to systematically prevent.” The financial damage to media offerings would be in the millions. “The social damage to freedom of the press and information is much more serious.”

What is Eyeo’s response to the allegations?

Eyeo managing director Frank Einecke told the dpa that this procedure was not about Axel Springer against his company or a legal dispute between a publisher and the provider of advertising filters. It’s also not about the business model of individual ad block providers. “It is about nothing less than the basic rights of users to use the Internet freely and to view it in a barrier-free manner and in accordance with their needs.” In Eyeo’s opinion, no individual company should have the right to ban users from to set their own browser settings or to force downloads of content or tracking.

What did the BGH hearing in July reveal?

At the oral hearing in Karlsruhe, the Senate announced that it would first wait for a ruling from the European Court of Justice on a similar case. The issue was the copyright lawfulness of the distribution of software that allows users to manipulate a game console program (so-called “cheat software”) – and the question of whether the game was inadmissibly “reworked” as a result. The BGH submitted the case to the ECJ in February 2023.

And what has the ECJ decided now?

The Luxembourg Senate ruled in October that the cheat software did not fundamentally violate copyright law as long as it only temporarily changed data in a console’s RAM. As long as the changed data was not intended to copy the program, copyright was not violated. The BGH must take the legal opinion into account.

What’s next?

The BGH has once again given the parties time to comment on the ECJ ruling with a view to their own proceedings. The oral hearing will continue on April 10, 2025, said the presiding judge of the First Civil Senate, Thomas Koch, on Thursday in Karlsruhe. The parties will be given until January 9th to comment on the ECJ ruling. It is unclear when the Federal Court of Justice will finally deliver its verdict.

Also interesting: