Mark Leiser: I am a PhD Candidate in Cyber Law at the University of Strathclyde in Glasgow. I have written submissions for the Leveson Inquiry into the culture and ethics of the media and for the Scottish Parliament on the use of social media during trials. My PhD is supervised by Professor Andrew Murray at the London School of Economics and focuses on the effectiveness of cyber-regulation. My research and interests revolve around main areas of Internet law and policy including internet governance & regulation, democracy, social media, privacy, and intellectual property. My PhD research focuses on developing a system of modelling to measure the effectiveness and legitimacy of Internet Regulation. I write in a personal capacity.
The lobbying group behind targeted Internet advertising has called on Mozilla to stop giving away AdBlocker calling the add-on “potentially illegal”. The law says otherwise.
Last week I did something I swore I would never do: I downloaded the add-on “Ad-Blocker” to block advertising from reaching me when I surf the net. This was monumental for me. I have long preached to privacy advocates and alarmists that their message about cookies, tracking and behaviour advertising is paternalistic in nature at best, and by refusing to acknowledge our ability to respond to targeted advertising ignore basic human autonomy at worst. I have always taken umbrage in their argument that I can’t control my own ability to not click a banner ad. I can honestly say I have never purposely clicked a banner ad. The whole system is quite frankly wasted on me. So why did I download Ad Blocker? I honestly don’t know. Part out of morbid curiosity and partly out of getting tired of being shovelled products for the middle-aged man. I am not quite ready for the onslaught of hair replacement products, although I probably could use them. Almost seamlessly the add-on changed my whole browsing experience. My Facebook page looks empty. Naked even. The link ads on my Gmail have disappeared. No more targeted advertising for me.
In an interesting coincidence, I received an email less than a week after installing AdBlocker suggesting I read a blog post by Randall Rothenburg, the CEO of the lobbying collective Interactive Advertising Bureau. His posting accused Mozilla of “losing its values” and exhibiting an “anti-business bias” by offering AdBlocker to its users. His post, which can be read here claims that Ad Blockers developed by Mozilla are responsible in some markets for up to 50% of lost revenue making it a “possibly illegal activity that deprives a cascading chain of legitimate enterprises of income.”
Blocking the incessant ads in your browser is potentially illegal?!? Mr Rothenburg is a lobbyist by nature, so I can forgive him for advancing the argument, albeit not based in any sort of fact. To back his argument up, he links to a CNET article from 2007 with a quote from John Palfrey, executive director of Harvard Law School's Berkman Center for Internet and Society: “If ad-blockers become so common that they slice away at publishers' revenues, I absolutely would expect to see litigation in this area."
That was 2007.
Respectfully I disagree with Mr Rothenburg’s contention that the consumer is not free to limit the type of speech that comes unsolicited into our browsers: commercial speech. Content providers have always litigated against technologies that circumvent commercial speech. The industry tried to shut down the VCR on the premise that it allowed the consumer to fast-forward past commercials on recorded broadcasts. The court in Sony v Universal about Betamax refused this claim. In the present day the court has also protected the rights of consumers to skip over intrusive ads. An appeals court in the ninth district refused to overturn a district court judge’s ruling deny FOX Broadcasting an injunction against a company called DISH, producers of a product that skipped past commercials in a television show. The product called “Hopper” allows its owners to “skip” or “hop” over commercials during programs that DISH transmits over its network.
Fox Broadcasting, Comcast Corp. (CMCSA)’s NBC and CBS Corp. (CBS) sued Dish last year in California, claiming that the ad-skipping feature would diminish their revenue from advertising. Dish sued the broadcast networks in New York seeking a declaration that its ad-skipping service doesn’t infringe copyrights.
In the digital TV era, the court chose to protect consumer choice. Although the case was argued on contract and copyright grounds, the judgement explicitly recognises the right of the consumer to skip over advertisements. Copyright cannot be used to limit consumer choice and Mr Rothenburg is wrong to argue that consumers don’t have any choices at the expense of advertisers. Advertisers contribute nothing to the cost of the Internet’s architecture, nor do they contribute to the cost of growing the Internet’s user base. The lobbying group he represents are about using the current platforms to sell products for profit. Mr Rothenburg has forgotten that the Internet is not just about the digital economy; it is about so much more than providing economic benefit to a select few companies. Ultimately, people have the autonomy to choose what they view and what advertisements they interact with.
Technology has always responded to the excesses of Internet advertisements. Remember never ending pop-up ads?
It is for the advertisement industry to react and adapt to the changes technology brings, not the other way around.
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