Privacy campaigner Hanff sends cease-and-desist letter to IDG over adblockers

EU law may mean that circumventing adblockers is illegal, claims Hanff

Privacy campaigner and advocate Alexander Hanff has sent a cease and desist letter to publisher IDG threatening it with legal action should it fail to stop circumventing adblockers, which he maintains contravenes EU privacy laws.

Many publishers (including Incisive Media) now use services such as Rezonence to prevent people who use browser plugins such as AdBlock Plus from viewing content on their websites and Pagefair to monitor adblocking rates.

There has been a dramatic rise in the use of adblockers, with as many as 25 per cent of Britons now using them on their PCs or mobile devices, a figure that rises to 35 per cent in Germany, according to Hanff (pictured).

This, publishers argue, is a threat to their revenues and thus to their ability to pay for journalists. Ad rates have also been squeezed in recent years and it's therefore a race to the bottom, they say. Surprisingly enough, many of the ad blocker creators agree. Eyeo, creator of Adblock Plus, runs an acceptable ads scheme that whitelists ads based on certain criteria. Only 25 per cent of Adblock Plus users are against all ads, Eyeo says, with the majority objecting only to obtrusive ads, worried about the spread of malware through "malvertising", or having concerns about their privacy.

"Criteria [for blocking or whitelisting individual ads] are currently set by the users, but Eyeo is now looking at putting the decision in the hands of independent stakeholders, so publishers, advertisers and advocates will all be in a foundation to decide the criteria," Hanff told Computing.

"How is that unreasonable? Publishers have nothing to lose."

The legal argument

The basis of Hanff's case against publishers who block adblockers (IDG is just a test case) is EU Directive 2002/58/EC. Without going into too much detail, this directive states that websites must obtain consent from users before storing content on their device. This includes cookies and scripts. He has spoken to 22 of the 29 EU data protection regulators and the office of the EU president (see letter pages here and here) and insists that they back up his stance that using scripts to check if ads are displayed without consent - as Pagefair does - may be illegal.

A users' browser settings may be taken as indicating consent or otherwise to this process and crucially, according to Recital 66 of the Citizens Rights Directive, this extends to browser plugins, such as adblockers.

Grey areas

However, nothing is ever cut and dried in law. Hanff says that virtually all websites (including that of the UK Information Commissioner's Office, ICO) are non-compliant. That fact alone may lead the lawmakers to seek a compromise on grounds of practicality.

Darren Sharp, head of programmatic and data at Incisive Media, described a recent event he attended on the issue. "Lawyers from AOL, Google and the European Interactive Digital Alliance see this as quite a grey area," he said.

These lawyers said that consent may be assumed when detecting the type of device being used and its settings, such as screen size, so that a web page can be served in the right format, and that this is just one exception to the rule. Adblockers are also likely to be exempt, they suggested.

However, Hanff dismissed that view as "nonsense" and a "desperate and gross misrepresentation by the vested interests of the adtech industry".

Next: How behavioural and contextual ads work

Privacy campaigner Hanff sends cease-and-desist letter to IDG over adblockers

EU law may mean that circumventing adblockers is illegal, claims Hanff

Behavioural and contextual ads

Programmatic (i.e software-driven) targeted ads served on websites from platforms like DoubleClick fall very broadly into two categories: behavioural and contextual. Behavioural ads target individuals based on their activities, either gathered by the advertiser using third-party cookies and tracking scripts or by a third party, such as a list broker. Contextual ads, in contrast, are based more on keywords and search terms.

There is an obvious crossover in these terms because performing a search is a behaviour, but behavioural advertising generally takes other aspects of a user's activities into account, such as previous pages visited, data from other devices such as a smartphone, and analytics using data from other sources. It is the form of advertising that is being most heavily promoted by the adtech industry, but it is also an area of concern to privacy campaigners and one of the reasons for the rise in the use of adblockers.

Hanff pointed to estimates from the advertising industry from 2014 that only 10 per cent of profits come from such ads (although this number has undoubtedly risen since then).

"Publishers who are having ads blocked are making no money. If they are hiring Pagefair they are still not making money but they are paying Pagefair, which seems ridiculous. At the same time they are damaging the brand and killing the trust reputation," he said.

However, Sharp said that users are willing to whitelist sites, saying that 40 per cent of those using Incisive websites monitored by Pagefair have done so. He said that in the end the type of advertising displayed comes down the auction system.

"Effectively all types of targeting lead to increased demand, and they all compete with each other. Typically the smaller the targeting the higher the rate that an advertiser will pay," he said.

"The same goes with formats. So, for example, high impact video ads compete with a standard static ad, if the high impact video ad gets removed it is likely to get replaced with the static ads but at a much lower rate."

However, Hanff believes that in the long term the system will have to change.

"Publishers are using adtech companies and don't have any control over the ads. They have relinquished control over that space to the adtech companies," he said. "Short term it may be costly to change, but long term what are the options?"

Certainly, whatever the outcome of Hanff's legal challenge to publishers, the advertising and publishing industries, and app developers, are going to have to come to an understanding.

Circumventing adblockers can only be a short-term solution for publishers and the likely result is a war of attrition. Already the first "adblock blocker blockers" are emerging, companies like Apple and mobile operator Three are offering adblocking as a service, and tech-savvy users can easily get around attempts to circumvent them anyway.

Meanwhile, prompted by Interactive Advertising Board (IAB) Sweden, 90 per cent of Swedish publishers are to join forces, collectively blocking adblockers in the month of August.