Many in the US digital media industry have cherished hope of a day in court against ad blockers. It’s a movement that began with a series of IAB summits last summer and which today is slipping along the spectrum from possibility to fantasy.
A year ago, the most likely legal route focused on copyright infringement. Since ad blockers interfere with “websites’ ability to display all the pixels that are part of that website, arguably there’s some sort of law that prohibits that,” WPP digital President David Moore told Ad Age.
The dream of successfully suing ad blockers has evolved into an approach targeting the “whitelist.” Publishers and trade groups, including the IAB and the Newspaper Association of America (NAA), are laying the groundwork for potential lawsuits against Adblock Plus’ (ABP) open-source revenue stream, which allows publishers and advertisers to serve ads to ad-block users – for a price.
The IAB is assembling the pieces for an eventual lawsuit. For instance, the trade group’s DEAL framework helps publishers ask ad-block users to agree to a content-for-revenue exchange.
This strategy isn’t directly about a legal challenge, but it establishes an agreement between consumers and content providers.
“When a user explicitly opts in to a form of payment with the publisher, which is most commonly advertising, it will be illegal for the ad blocker to try to block the advertiser,” said Ben Barokas, founder and CEO of the publisher ad-block solutions firm Sourcepoint.
Publishers would have to “establish a contract with individual readers, which they can hold up as a binding agreement that the ad blocker is interfering with,” said Gary Kibel, a partner in the digital media, tech and privacy group at the law firm Davis & Gilbert.
Even then, the argument isn’t airtight because ad blockers have opted-in users, downloads and terms and conditions in place prior to the publisher agreement.
“If a publisher had those agreements in place and could say, ‘We have direct arrangements with these readers where they have agreed to an exchange of advertising for content,’ I can at least see them trying to make that case,” Kibel said.
The IAB has also scoured publishers, regulators and consumers for a potential plaintiff to bring a case against an ad blocker, but has found no willing parties.
Establishing Precedent
The most straightforward way to establish legal precedence against ad blockers would be for a large media company to shoulder the financial and PR burden of lengthy cases and appeals.
This is happening in Germany, where media giant Axel Springer is willing to spend millions to test every possible legal vulnerability of ABP and its Acceptable Ads program.
“Germany was the first to come to a breaking point, but France and some Scandinavian countries are seeing revenue fall off the back of a truck,” said Barokas.
The sense of urgency is far lower in the US, he said, and it’s unlikely that another major European publisher follows in Axel Springer’s footsteps. But thanks to Axel Springer, German publishers can legally avoid paying whitelisting fees if they file and win individual lawsuits.
But whenever the German courts ruled on the legitimacy of ABP’s business model, the ad blocker won, providing the blueprint for a global legal strategy.
“If there are cases in other countries trying to ban ad blockers (or us in particular) we will handle them just as we do in Germany,” ABP general counsel Kai Recke wrote in an email to AdExchanger.
A Potential Strategy
Many expected copyright violations to be the primary vehicle for a potential suit since it is the publishers’ pixels that are overtaken by ad blockers.
But publishers don’t have the same legal rights over browsers or apps as they’ve had with their own presses, paper and distribution channels, said Kibel.
If ABP inserted itself into the print distribution process to block or change ads in newspapers or magazines before they were delivered, that would be legally actionable, said Kibel. But there’s no analogue for the digital delivery process.
ABP CEO Till Faida argues that it’s easy for users to personalize the product or disable it entirely for selected sites.
“I don’t think we could legitimately be considered as getting in the way of any experience,” Faida said. “It’s not like we automatically get installed on the machines.”
Little Legal Action In US
The IAB would love for the US government to approach ad blocking as a regulatory issue, as China might be doing. But that would require consumers taking issue with ad blocking.
The NAA, which represents mostly daily papers, including The New York Times, the McClatchy Group and Tronc (formerly Tribune Publishing), has come closer than any other organization to bringing a suit against an ad blocker. At least, it sent a letter.
“We stand ready to enforce all legal rights to protect our trademarks and copyrighted content and to prevent you from deceiving consumers and unlawfully appropriating our work,” the NAA wrote to Brave, a particularly aggressive ad blocker that removes the ads a publisher wants to place in favor of the blocker/browser’s own ads, which it says better protect privacy.
Publishers which agree to Brave’s terms share revenue between the pub, Brave and Brave’s users. For those who don’t agree, it’s just another set of ad-blocking readers.
Despite the tough language, the NAA will not follow through on its legal threats against Brave.
“Rather than pursuing litigation,” said Paul Boyle, NAA’s SVP of public policy, “we are pointing out where certain ad-blocking technologies either violate publishers’ rights, as is the case with Brave’s ad substitution approach, or deceive consumers by saying that, in the case of AdBlock Plus, only ‘acceptable’ ads will be delivered but omitting that an ‘acceptable’ ad from a large publisher cannot reach the consumer without payment.”
As Axel Springer has demonstrated, the gains are slim and the price is high for making any legal headway against ad blockers.
“Challenges to methods of ad blocking could touch on a range of legal concepts,” said Dave Grimaldi, IAB’s executive VP of public policy. “Some involve bedrock law, while others are new angles on established legal concepts. We are exploring all of them, and welcome the light that Axel Springer and the NAA are shining into the dark world of ad blocking.”
