Legal Corner: The War on Ad Blockers – Axel Springer’s Assault on User Freedom
For many internet users, an adblocker is an important piece of
software that allows them to control the digital information
they receive from their browsers, providing the option of an ad-free
browsing experience. Despite this, a recent decision by the German
Federal Court of Justice is giving Axel Springer a second chance to erode user freedom.

CC-BY-NC-SA by
Rahak
The original lawsuits brought by Axel Springer
We wrote in 2023 about the
outcome of a series of suits filed by Axel
Springer SE (Axel Springer), one of Germany’s largest media and
publishing companies, against Eyeo GmbH (Eyeo), the creator of Adblock
Plus. Eyeo and Adblock Plus prevailed in the courts back then, allowing
for the continued use of adblockers such as Adblock Plus by internet
users in Germany. A new recent decision by the German Federal Court of
Justice has unfortunately given Axel Springer a second chance to make
its arguments against adblockers.
Adblock
Plus is a Free Software browser extension licensed under the
GPLv3 that allows its users to bypass ads and pop-ups when accessing
websites, for an ad-free internet browsing experience. This was done
according to filter rules maintained in a so-called “black list”, which
users use as a default setting. The extension offers ad providers the
possibility of having their ads excluded from this black list (and
included in a “white list”) by complying with “acceptable advertising
standards”, disclosing their annual turnover, and paying a fee to Eyeo.
Users will then only see ads that have been included in the white list,
although they also have the option of blocking ads from both white and
black lists altogether if they so choose.
Axel Springer’s legal complaints in their suits against Eyeo were on
the grounds that how the Adblock Plus extension functioned
constituted:
- targeted obstruction and aggressive business practice; and
- a violation of freedom of the press.
Back then, the Hanseatic Higher Regional Court (the HansOLG) in
Hamburg ruled
in favour of Eyeo. In doing so, they stated that using
adblockers such as the Adblock Plus extension is a decision that users
are entitled to freely make, as user rights not only include the freedom
to express an opinion and to receive information, but also the rights to
refrain from expressing an opinion, and to refuse receiving imposed
information. This meant that Adblock Plus’s business model was a
marketable service offer not primarily aimed at impairing the
competitive development of Axel Springer. Adblock Plus therefore
constituted a product whose use is decided solely by the internet user,
and does not directly interfere with Axel Springer’s business.
Axel Springer’s current re-litigation of user freedom
This brings us to the unfortunate current situation. After the
HansOLG ruling in 2023, Axel Springer appealed this ruling to the German
Federal Court of Justice (the BGH), which led to the
BGH issuing a
judgment on 31 July 2025 allowing the case to be remanded back to the
HansOLG.
Specifically, the BGH held that Axel Springer’s exclusive rights to
reproduce and modify their computer programs, granted to them under
Section
69c of the German Copyright Act (the UrhG), can possibly be
infringed by an ad-blocker. In a situation where a browser and its
engines are not controlled via object code, but by bytecode from which
the browser’s virtual machines generate object code, the BGH stated that
such bytecode (or the code generated from it) may be protected as a
computer program. The BGH was of the opinion that if a third party
computer program, such as adblockers like Adblock Plus, alters this code
in the course of reproduction, this may possibly infringe upon the
exclusive rights provided for by the UrhG.
It is important to note that the BGH’s statements here about bytecode
and object code are merely speculative, and what the BGH thinks to be a
possible interpretation of German copyright law. The actual substance of
the BGH’s ruling is to compel the lower court of the HansOLG to
re-consider the case for further fact finding. In other words, it is the
responsibility of the HansOLG to definitively state what the actual
interpretation of German copyright law is.
What this also amounts to is that Axel Springer has essentially been
given a second opportunity in the court system to question the legality
of adblockers. In this second opportunity, the actual interpretation of
the law that the HansOLG now has to produce will be influenced by the
direction given by the BGH to focus on Axel Springer’s arguments about
whether the DOM, CSS, and bytecode are to be considered as protected
computer programmes under the UrhG, and whether an adblocker’s
modifications of these elements amount to a violation.
The implied conflict of corporate vs user freedoms: a balancing of
rights
Back in the original suit before the HansOLG, Axel Springer’s
arguments were that their websites could be protected under German
copyright law as a copyrighted computer program, and that their HTML
code would come under this same protection because of the control
components it included. Because of how Adblock Plus interacts with their
websites, Axel Springer therefore claimed that copies and adaptations of
the code amounted to violations of the copyright protections preventing
modification and reproduction.
Axel Springer’s line of argumentation was rejected in the HansOLG’s
ruling in 2023. The court ruled that the use of Adblock Plus solely
affects the program flow through external commands, without altering the
program’s essence or generating a changed version. The use of the
Adblock Plus extension therefore results in what was deemed at the time
to be a mere browser configuration carried out by users according to
their preferences.
It is therefore interesting to compare and see the different
perspectives taken in the judgement issued by the HansOLG in 2023, and
the appeal judgement by the BGH this past July. The HansOLG’s judgement
seems to take a firm view of user freedoms, particularly placing greater
weight on an individual internet user’s freedom to configure their
browsing experience, and their rights to third party software to do so.
Conversely, the ruling of the BGH seems to be hyperfocused on questions
of ownership of copyrights, and the technicalities of how adblocker code
can interfere with such copyrights.
Legal disputes often arise because two parties are trying to exercise
rights that come into conflict with each other, and the resolution of
such disputes come about when the courts find what they deem to be a
satisfactory balancing of rights within the context of the law. Finding
a satisfactory balance will depend on how much weight or importance the
court gives to each right argued by the parties. In this situation, in
our opinion it seems that the BGH is remanding the case back to the
lower courts as it is uncertain about the question of which is more
important:
- The rights of internet users to control, configure, and filter
the type of information that they receive when using the internet;
or
- The rights of Axel Springer as a website creator to have the
exact configuration of content on their website to be delivered
unchanged to an internet user, in the extent to which it is protected by
copyright.
Will the court prioritize our individual user freedoms to control how
the average internet user is able to use digital technology, or will it
prioritize copyrights that prevent the alteration by adblockers of the
website code of Axel Springer? In our opinion, this question is an easy
one to answer. The freedoms of tens of millions of internet users in
Germany to be able to self-regulate the information that they wish to
receive through their own web browsers far outweigh the interest of a
multinational enterprise that
reported an estimated €3.9 billion in
revenue in 2023 to be able to capitalize more effectively on ad revenue.
For this reason, we are of the opinion that the HansOLG made the
correct call in prioritizing user freedoms in their 2023 ruling, and
hope that the court will find the same outcome in this second round of
trial.
Consequences of a possible pro-Axel Springer verdict
The immediate goals of Axel Springer in this court battle can be said
to be the effective disabling of the use of Adblock Plus when viewing
Axel Springer produced websites. Nevertheless, it is important to keep
in mind that the effects of legal verdicts are often not limited to just
the immediate parties. In many cases, the court’s reasoning and
interpretation of the law can have larger societal effects than just on
the immediate subjects of each case. A court ruling rarely affects just
the specific topic of the verdict; more often than not the philosophical
underpinnings in a judicial reasoning is its legacy and lasting
impact.
A pro-Axel Springer verdict therefore could have disastrous
consequences on user freedom for German internet users. While the
immediate effect of the case may be that internet users will no longer
be able to use Adblock Plus to block ads on Axel Springer websites, the
broader reasoning behind such a decision could open the doors for any
website with ads to benefit from such a ruling as well. This could
effectively spell the end for internet users in Germany to effectively
block unwanted ads on all websites beyond just Axel Springer’s, by
rendering adblockers illegal in Germany.
Additionally, the BGH’s insistence on focusing on examining whether
copyrights are preserved through the alteration of bytecode (or the code
generated from it) by third party computer programmes can possibly be
applied in the future for other web apps or extensions beyond just
adblockers. There are many such apps and extensions in existence today
that allow users to customize their internet browsing experience,
including some that allow users to preserve their freedoms and rights in
other areas.
For example, the Free
Software extension Privacy Badger (licensed
under the GPL3-or-later), maintained by the Electronic Frontier
Foundation, blocks hidden trackers to help users stop companies from
harvesting personal data. If apps such as Privacy Badger are deemed by
the courts to alter copyrighted code in the same way as Ad Blocker Plus,
a pro-Axel Springer verdict could therefore work to prevent the use of
programmes that internet users use to protect their privacy, security,
and autonomy.
Existing problems in the 2023 verdict
It is nevertheless also important to note that, while the support for
user freedom by the HansOLG judgement in 2023 was certainly welcome,
this verdict is not without its faults. Although it supported user
freedom to configure browsing activity, the HansOLG nevertheless
preserved Axel Springer’s right at the time to exclude users with an
activated adblocker from accessing its content. This can be understood
to be an approval of the use of adblock detection tools by companies
like Axel Springer to exclude user access to information. Indeed, Axel
Springer has deployed such tools on a number of its websites, which
significantly hinder a user from accessing its content if an adblocker
is used.
This is a particularly unfortunate aspect of the 2023 verdict, as
tools to detect the use of adblockers are in violation of Art. 5(3) of
the ePrivacy Directive, which mandates that websites must seek consent
before accessing or storing information about the user’s device. Such
information includes scripts in the terminal equipment of users to
detect if they have installed, or are using adblockers.
Open possibilities in case of a ruling
This ongoing saga is yet another example of how our rights and
freedoms are not immutable. Rather, they require effort to be
maintained, and constant vigilance to ensure their preservation,
especially against entities that are incentivized to erode them for
profit.
That being said, court cases are very much insulated in nature; apart
from those immediately involved in the litigation, there tends to be
little that the average member of the public can do to directly affect
the outcome of a specific case, regardless of how much the verdict of
such case may affect third parties. Nevertheless, if a pro-Axel Springer
verdict is reached, action can still be taken afterwards.
One option available would be an appeal to the European Court of
Justice (the ECJ) on the grounds of a violation of the aforementioned
ePrivacy Directive. While this does not necessarily reverse any adverse
ruling on adblockers that the current case before the HansOLG may bring,
an ECJ ruling that explicitly declares tools detecting the use of
adblockers to be a violation of the ePrivacy Directive would be useful
to make enforcement of an adblocker prohibition much more difficult, and
would be a useful legal tool in the fight to support user freedoms.
Additionally, such a verdict can be countered by working towards
policy goals that enact legislation (whether in Germany, or EU wide),
that prioritize the protection of user freedom, security, and
independence when using the internet, and other digital services and
technology.
If you have a legal or licensing question related to Free Software
that is not covered here or in any of our other resources, you can
consider asking our License
Questions team by sending them an email at
licence-questions@fsfe.org.
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