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Unblocking User Freedom: the right to use adblockers

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Companies increasingly aim to control how users interact with their content online, threatening user freedom. As more companies crack down on browser extensions and other third-party software used by internet users to customise their experiences, two recent German court cases on adblockers could strengthen the legal case for user control over technology.

An illustration about privacy showing eyes behind some bars
CC-BY-NC-SA by Rahak

Advertisements are a part of our lives, including our digital ones. They are in the websites we browse, the search results we receive, and the online news we read. Tired of receiving so many ads, some users try to avoid them by installing an adblocker. But is this a legal practice? Is using adblockers an act of restricting market autonomy, or do they help achieve user freedom?

Imagine a scenario where website owners hold copyright over their websites, including whatever ads they place, and could effectively sue for copyright infringement if users were to remove or suppress ads when visiting these websites. This hypothetical situation would enable any website copyright holder to use the legal system to stop any ordinary user on the internet who tries to bypass these ads. This would lead to an internet where unsolicited information and advertisements are imposed on users. Fortunately, recent court decisions have at least prevented this hypothetical from becoming a reality in Germany.

Using an adblocker is the main way in which many internet users bypass ads and pop-ups when accessing websites. Adblockers usually come in the form of browser extensions and plugins that filter out unwanted ads for an ad-free internet browsing experience.

As the use of these adblockers increases, some companies have begun considering whether it is legal for users to be able to block their ads. This was the case in Germany when Axel Springer SE (Axel Springer), one of Germany’s largest publishing companies, engaged in lawsuits against Eyeo GmbH (Eyeo), the creator of Adblock Plus (a Free Software adblocking tool licensed under the GPLv3). These lawsuits have resulted in a legal battle for user freedom and an open internet.

In the case of Adblock Plus, ads are blocked 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 sum to Eyeo. Users will only see ads that have been included in the white list, but they also have the option of blocking ads from both white and black lists altogether.

Axel Springer filed several suits in Germany against Eyeo on the grounds that the Adblock Plus extension interfered with their business, alleging that by blocking its advertisements, Eyeo had engaged in anti-competitive measures. According to Axel Springer, Eyeo’s business model constituted:

  1. Targeted obstruction and aggressive business practice; and
  2. A violation of freedom of the press.

The right not to be advertised to

After ruling that the option to use adblockers is a decision that internet users should be able to make, the courts in Germany ruled that 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 to receive imposed information. In doing so, the rulings considered a user’s interest in being spared from obtrusive advertising.

Accordingly, internet users are simply exercising their right to not have certain forms of advertising displayed when visiting internet websites when they choose to make use of an adblocker. Adblock Plus’s business model, according to the courts, was therefore a marketable service offer which was not primarily aimed at impairing the competitive development of Axel Springer. In the opinion of the courts, Adblock Plus also does not directly interfere with the business, as users retain autonomy to do as they wish with the settings of the add-on after installation. Users can block or wish to see only the ads in the whitelist. Adblock Plus is therefore merely a product whose use is decided solely by the internet user.

The HTML argument: does the use of adblockers constitute a modification of a computer program?

Axel Springer also submitted an argument to the German courts that their websites would be protected under German copyright law as a copyrighted computer program, and that their HTML code would similarly be covered under this ambit because of the control components it included. Because of how Adblock Plus interacts with its website, Axel Springer therefore claimed that copies and adaptations of the code in its website were violations of copyright made without permission.

In both the initial court ruling and the decision on the subsequent appeal in favour of Eyeo, the court disagreed with Axel Springer and held 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. Thus, the use of the extension results in a mere browser configuration carried out by users according to their preferences.

The courts noted that internet users do not require permission from website owners when they want to make the website look better for themselves. Modern websites are made up of many separate parts that can be technically distinguished from each other, including text, images, and videos, as well as software that is embedded in the HTML page. For the courts, it wasn’t enough that these software components were used in the website’s HTML page to mean that the website itself was a protectable computer program. We can therefore infer that adblockers do not infringe upon a program’s protections.

Downsides of the case

Nevertheless, some aspects in the judgments are still not ideal in promoting the average user’s rights. While user freedom means that users are able to use the tools that they wish to when browsing the World Wide Web, the court nevertheless preserved Axel Springer’s right to exclude users with an activated adblocker from accessing its content. This can be understood as an approval on the use of adblock detection tools by companies like Axel Springer.

Unfortunately, the court also mentioned that Axel Springer can convert its content into a paid access model, justifying this measure as an element inherent for competition. We fear that this tacit approval can result in paywalls and adblock detection tools becoming the basic standard on the internet.

More importantly, tools to detect the use of adblockers go against Art. 5(3) of the ePrivacy directive, which mandates that websites must seek consent before accessing or storing information about a user’s device. The EU commission has confirmed that, Art. 5(3) of the ePrivacy directive is not just limited to cookies but ‘all types of information’ stored or accessed in the user’s terminal device. This applies to the storage by websites of scripts in users’ terminal equipment to detect if users have installed or are using adblockers.

A win for user freedom?

With many service providers and websites on the internet following the trend of restricting users with adblockers from accessing their services, these court decisions in Germany help build precedents that uphold and recognize principles of user freedom.

Indeed, these decisions support the principles of a Next Generation Internet, including ensuring that internet users can make individual choices and exercise their freedom of expression, in ways in which they can freely develop and use new extensions and browser features to enhance their online experience and user control.

Despite the steps forward for user control found in these judgments, they do not go as far as we would hope to secure user freedom when using the internet, and are still subject to appeals and therefore may not be final. We will keep an eye on the legal proceedings in this case and keep you updated when new developments occur. In the meantime, the court cases can be read on the Bundesgerichtshof and Landesgerichts websites. If you are aware of any similar cases or other developments to support user freedom in any other member states in the EU, then please do share and reach out to us!