Can advertisers turn to the government for ad blocking relief?

vignette-with-scrolls-768Publishers and advertisers have taken their fight against ad blocking to the courts in Germany. The Axel Springer publishing house has, for over a year, undertaken a campaign of lawsuits against targets involved in ad blocking, most notably Eyeo the maker of Ad Block Plus software. Springer has also sued the German-based ad blocking apps “AdShield” and “Adblock (Betafish),” not to mention a YouTube video blogger who had posted instructions for evading the ad wall on Bild.de. So far, the results of the lawsuits have not been very positive for Springer, particularly in the their efforts against Eyeo. Some of the smaller app developers have caved, but Eyeo has likely enough financial strength to fight back against Springer with everything they have, to preserve their ability to distribute ad blocking software, and sell access to their “white list” filter.

In the US, the legal foundation for lawsuits against ad blocking is shaky, at best. There has been some discussion of it, and even the trade group of the advertising industry, the IAB, has brought up suing ad blocking companies, but the likelihood of the courts providing a significant victory is remote. As PageFair, a not disinterested party selling its own solution to ad blocking has put it, if lawsuits are largely ineffective against something as clearly illegal as copyright infringement, its hard to see them work against ad blocking.

A different option, to bring the government into the fight on the side of the advertisers and publishers would be to involve the Federal Trade Commission, as another industry group floated in an article last week. Getting the FTC to intervene and possibly rule against ad blocking tools and companies might provide some relief for ad dependent online publishers, and might pressure tech companies like Apple to avoid supporting ad blocking. The statement from Chris Pedigo of “Digital Content Next,” a lobbying group for online publishers, explicitly called on the FTC to help fight against what he characterized as the “fraught with harmful and shady business practices” of the ad blocking companies. While accepting that the online publishing industry had created their own mess by not respecting their consumers’ privacy, security or attention with intrusive ads, unnerving tracking and dangerous insecurities, Pedigo insists that third parties coming between publishers and their readers is unacceptable. As he says,

Regardless of what ads should be shown or whether they should be shown at all, I think we can all agree that disrupting an important dialogue between consumers and publishers and shaking down publishers to whitelist ads are not the hallmarks of a healthy ecosystem.

Clearly the DCN hopes to get across this message at an upcoming public conversation they have scheduled with FTC Commissioner Julie Brill.

The desire on the part of publishers to have the US government step in and solve their ad blocking issue is an attractive prospect, but Pedigo’s characterization of the situation is inaccurate and clearly self-serving. Demanding that third parties should not “block conversations between a publisher and a consumer” is rather rich, as publishers have endeavored mightily to serve up their readers to third party advertisers and fourth party (!) trackers and analytics. Consumers have had no choice or visibility in those transactions, other than feeble cookie management tools and utterly ineffective Do Not Track settings.

Now, as large numbers of consumers have taken more assertive steps to protect themselves, publishers are discovering that their might be a down side to bringing other parties into the publisher/reader relationship. Not to mention that ad blocking only occurs when users have actively and consciously chosen it. They are the ones who do the actual blocking, not the companies that have developed the tools, as no ad blockers would be present if users did not go out of their way to install it in their browsers or on their mobile devices, often past real technical challenges. Despite Pedigo’s claims, publishers are still fully capable of continuing any dialogue they please with their readers, as ad blockers do not generally censor the authentic content of web sites. They do, however, tune out unwanted and potentially dangerous interventions from third parties that readers have no relationship with and have no reason to trust at all. It is ultimately up to the publisher to provide a compelling argument to their readers to allow advertising and/or tracking back in, but it is hard to see how that will happen if groups like the DCN want the FTC to intervene and prohibit the only tools consumers presently have to protect themselves.

It will be very interesting to see what Commissioner Brill has to say about ad blocking while in conversation with Digital Content Next, as she has previously been quite reproachful to the ad industry about tracking and privacy. In a speech from September, Brill placed the desire by consumers to block ads squarely on the refusal of advertisers to be transparent about tracking and to provide means for opting out. As Brill put it,

Truthfully, it is surprising to me that the ad tech industry hasn’t been more motivated to offer consumers better tools to protect their privacy, because it has always been the case that consumers could take matters into their own hands.

Brill does not address other aspects of the ad blocking trend, in regards to data usage or annoyance, but clearly supports the rights of consumers to block ads until advertisers respect consumer privacy and earn consumer trust. And she clearly implies that the ad industry’s inability to self-regulate, even when given the chance to embrace the “Do Not Track” tool supported by the FTC, means the government is not eager to step in and protect them from themselves.

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