Unblocking User Freedom: the right to use adblockers

News

on: 2023-12-20

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.

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.

Is it legal to use adblockers? The lawsuit in question

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.

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!

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