Internet - Author's lawsuit against ad-blockers - BGH awaits EUGH judgment
The Bundesgerichtshof (BGH) is waiting for a judgment from the European Court of Justice (ECJ) in a lawsuit over the permissibility of ad-blockers. The highest German civil courts see similarities to a case that is to be decided in Luxembourg in October. Currently, in Karlsruhe, there is a claim by media company Axel Springer against ad-blockers. The publisher sees in them an unlawful manipulation of the programming of its websites, which violates its copyright.
Unsuccessful at the OLG
In the lower courts, the claim (AZ: I ZR 131/23) was unsuccessful. According to the Higher Regional Court of Hamburg, the influence on the program flow by the ad-blocker is not a manipulation of the program. It remains open whether the files transmitted to the user upon a website call are protected as computer programs and the publisher owns the exclusive use rights.
Going to the substance?
According to the BGH, the main question is: Is there an interference with the computer's protected programs? From Springer's perspective, this is the case. Programs are being blocked or overwritten. "That's an interference with the substance," emphasized Springer's lawyer. "Not only contents are suppressed. 'The entire financing of a website is destroyed.'"
Massive losses due to blockers
According to the media company, digital advertising losses, in addition to digital subscriptions, are the most important pillar for independent journalism to be profitable in the future. "Exactly this is what ad-blockers systematically try to prevent. The financial damages for media offerings amount to millions. The societal damages for press and information freedom weigh even heavier," so Philipp-Christian Thomale, Senior Legal Counsel at Axel Springer National Media & Tech, in a statement.
The user's right
The lawyer of the Cologne company Eyeo, whose software Adblock Plus allows users to block advertising on websites, emphasized, however, the right of internet users to set up their browsers as they wish. Through ad-blockers, programs are not being modified. Therefore, there is no copyright relevance. He also warned against an extension of copyright protection to functions, which is not intended for PC programs - and thus about possible future problems, for example, with the installation of youth protection software.
Looking to Luxembourg
Before a judgment in this complex legal dispute, the BGH wants to wait and see how the ECJ decides in the case "Action Replay". The Karlsruhe judges have referred the case to the Luxembourg judges (Decision of 23. February 2023 - I ZR 157/21). It concerns the copyright permissibility of the distribution of software that allows users to manipulate a game console program ("Cheat-Software"). The ECJ decision is expected on 17. October.
The long fight
Axel Springer has been trying to stop the ad-blocker Adblock Plus legally for years. With a competition complaint, the publisher was unsuccessful in 2018. The BGH saw in the offer of the company Eyeo no unfair competition and also no unlawful aggressive business practice. The decision on the use of the ad-blocker lies with the user of the internet pages and not with the defendant company, so the BGH at that time (AZ: I ZR 154/16 - Judgment of 19.4. 2018).
- The Federal Court of Justice in Germany is anticipating a ruling from the European Court of Justice in Luxembourg regarding a lawsuit involving the permissibility of ad-blockers.
- The legal claim by Axel Springer against ad-blockers in Karlsruhe has been unsuccessful at the lower courts.
- The Higher Regional Court of Hamburg argued that the ad-blocker's influence on the program flow is not considered a manipulation of the program.
- The main question for the Bundesgerichtshof is whether ad-blockers interfere with the protected computer programs.
- Axel Springer believes that ad-blockers are manipulating and interfering with the substance of its websites, threatening the financial sustainability of its digital advertising and journalism.
- Eyeo, the developer of Adblock Plus, argues that internet users have the right to set up their browsers as they wish, suggesting no copyright relevance with ad-blockers.
- The Federal Court of Justice is looking to the upcoming ECJ decision in the "Action Replay" case to help inform their own ruling in the Axel Springer lawsuit.
- Axel Springer has been engaging in a lengthy legal battle against Adblock Plus, unsuccessfully appealing a competition complaint with the BGH in 2018.
