Publishers who use “ad blocker blockers” face a range of legal challenges across the EU in the latest fight over the increasingly popular but controversial technology.
Ad blockers, which allow browsing free of pop-ups or pre-roll adverts on videos, have come under attack recently from publishers who rely on advertising to pay the bills.
Publishers ranging from The New York Times to the technology magazine Wired have taken the step of introducing pop-ups asking users to switch off their ad blockers, and in some cases blocking those who refuse to do so.
But this fightback faces a series of legal challenges across Europe after the European Commission confirmed that ad blocker blockers potentially broke EU #privacy rules.
Privacy activist Alexander Hanff is set to lodge a barrage of complaints with national regulators across Europe against publishers that employ technology to block ad block users.
*Although lawyers and programmers are split on whether the challenges will succeed, the move throws a light on the growing row over ad blocking devices now used by more than 200m people globally.¨ It also underlines the increasingly stringent rules that companies in the EU now face when operating online.
EU rules concerning online privacy, popularly known as the “cookie directive”, dictate that if a website stores or accesses information on someone’s computer, they must first gain consent. This rule has manifested itself most obviously in the rise of pop-up boxes, warning that a website uses #cookies — the small pieces of data put on customers’ browsers to track them across the web.
Mr Hanff argues that this rule should apply to the technology used by companies to detect if someone is using an ad blocker. “We live in a regulatory vacuum at the moment,” he said. “There is very little enforcement at the moment.”
Officials at the commission broadly agreed, stating that publishers would need “informed user consent” if their ad blocking detection methods “entail storing or accessing information in users’ terminal[s]” in a statement given to the Financial Times.
If Mr Hanff succeeds, companies who block ad blockers would have to stop the practice and face sanctions — including fines — from data protection authorities across the EU.
The move comes after Brussels attempted to introduce a higher bar for companies trying to gain consent from users as part of sweeping new privacy laws.
Even so, industry insiders are sceptical about the chances of Mr Hanff’s challenges succeeding. Critics insist Mr Hanff has unfairly represented the way ad blocker blockers work, arguing they do not always store or access information on a user’s device.
Some lawyers say national regulators, who will have the final say, were unlikely to agree with Mr Hanff’s — or even the commission’s — strict interpretation of the law. “In a nutshell, I think that . . . [it] is stretching the law,” said Eduardo Ustaran, a partner specialising in data protection at Hogan Lovells International.
“The aim of those [ad block] detectors is not to gain access to information stored in the device as such, but to identify certain functionality within the device,” he added.