Ad blockers, liability, and the future of web content

Ad blocker on? Aside from meaning “I want all content for free, no matter the cost for the provider”, did you check who decides which ads/scripts/cookies to allow or block, and if this is even legal? Several browser extensions (even some browsers) now prevent certain scripts/cookies/… from loading. This creates “dark traffic”, web traffic that is invisible to the publisher and its ecosystem.

I already warned last year about the questionable legality of ad blockers and bypassing techniques (see https://lnkd.in/esHz2dNd ), and recently the German Federal Court of Justice suggested that ad blockers could lead to copyright infringement due to alteration of the website code (e.g. HTML or CSS) appearing through a user’s browser. We will see what is decided in further stages of that specific litigation, but it is important nonetheless (see https://lnkd.in/egdSehZc for the decision and https://lnkd.in/eVwT64PU for a summary by the attorneys of the successful publisher).

So then: what about who decides what should be blocked or not?
When a provider of a tool decides *on its own* which scripts/cookies/etc. to allow or not, *this is their own decision* for which they could be deemed liable.

In fact, some ad-blocking providers make their own whitelist, sometimes in a favour of own products and services. Some cookie rejection tools rely on classifications (what is “necessary” under ePrivacy? and what not?) made opaquely.
Are they objective? Not necessarily. Are they justified in their legal assessment? Perhaps not.

When we successfully defended the necessity of content personalisation in certain cases (see commentary of Belgian DPA decision here: https://lnkd.in/emMNh78z), one of the issues was that some cookies were listed on a cookie classification website as non-necessary, influencing the data protection authority’s investigator. Challenging this incorrect assumption wasn’t easy.

So when you rely on an ad/cookie/script blocker, you may be unwittingly handing over these assessments to someone else and causing problems further down the line.

What should users do? Besides disabling your ad-blocker (hope springs eternal), perhaps consider the implications. If everyone copied your behaviour, would the content even be available? Next, have you checked the practices of the ad-blocking tool provider and how the whitelist is built?
Saying “just stop targeting users!” isn’t an excuse, unless you want the Internet of the mid-90s back in all of its “general ads” glory.

What about publishers, advertisers & intermediaries? Should they attack ad blocking providers? The liability issue is worth exploring, as are (un)fair market practices. And denying access to ad blocker users? There are ways to justify that. Just make sure you focus on education too: help users understand why, and gain their trust.

After all, monetisation without trust isn’t worth much – just like users should remember trust goes both ways, and nothing is free.

Data protection GDPR adtech