Axel Springer vs. Adblock Plus: Federal Court of Justice awaits ECJ ruling
Axel Springer has been trying to take action against adblock developer Eyeo for years. The Federal Court is waiting for the European Court of Justice.
In the dispute over the adblocker provider Eyeo, the BGH has declared that it will wait for the European Court of Justice.
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It's a dispute that has been smouldering in various forms for years: the publishing house Axel Springer has been trying for years to ban ad blockers from its media sites and to enforce this in court. On Thursday, the Federal Court of Justice (BGH) in Karlsruhe dealt with the issue (case number I ZR 131/23). However, the BGH wants to wait for a ruling by the European Court of Justice (ECJ) in a similar case.
On Thursday, the First Civil Senate of the Federal Court of Justice, which is responsible for copyright law, dealt with the publisher's copyright claims against Eyeo, the provider of the Adblock Plus ad blocking add-on. After Axel Springer had already failed before the Hamburg Regional Court (2022) and the Hamburg Higher Regional Court (2023), the publisher is now attempting to enforce its objectives on appeal before the Federal Court of Justice.
In this further attempt, Axel Springer has changed its argumentation and is now emphasizing copyright law: According to copyright law, the programming of the websites constitutes computer programs to which Springer has the exclusive rights of use. When a web browser calls up a page, the HTML file is stored in the computer's working memory. To display the page, the browser interprets this file and creates additional data structures. An installed ad blocker add-on influences these data structures, which in the publisher's opinion is "an unauthorized modification of a computer program within the meaning of Section 69c No. 2 UrhG". Springer is demanding injunctive relief, information and damages.
Lower courts dismissed the claim
In the previous instance, the Hamburg Regional Court dismissed the claim. The appeal was also unsuccessful: the Higher Regional Court declared that whether the website programming was a computer program or not was not decisive. The court argued that the intervention of the ad blocker after the data storage in the working memory was not a reworking in the sense of the copyright paragraph to which the publisher refers. In order to meet this point, the program substance would have to be changed, or the program would have to be changed and reproduced. However, this is not the case. The adblocker merely interferes with the program flow by affecting the data structures that the browser calculates "as part of the display of the HTML document as a temporary intermediate result during the execution of the website programming". According to the Higher Regional Court, the tool does not interfere with the substance of the program.
The Federal Court of Justice sees similarities to a case that is to be decided before the European Court of Justice in Luxembourg in October. The highest German civil judges are therefore awaiting the ECJ's ruling, reports news agency dpa.
Numerous lawsuits by media companies against adblock providers
Eyeo has previously had to defend its business model in court: The financing model via so-called Acceptable Ads, which in the opinion of the Adblock makers are not intrusive, are not filtered out in the default settings. Several media companies saw this as a violation of competition law. Axel Springer has also already taken legal action against the company, albeit also unsuccessfully. In their arguments, the courts referred, among other things, to Eyeo's argument that the installation of the add-on was the user's decision. The courts saw no grounds for action against Eyeo when examining the unfairness criteria.
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