Adblock detector legality debate is not a 'day of reckoning for publishers' or a win for adblockers

So there was a bit of a stir at Advertising Week on Monday when think-privacy.com founder Alexander Hanff told the room that the use of scripts to detect adblockers was illegal.

Over the coming hours and days there were a number of queries made directly to Hanff both privately and via Twitter asking for clarification on the point. Eventually we got the answer: ‘Use of scripts by websites to detect adblockers could be a breach of Article 5(3) of the 2002/58/EC ePrivacy Directive – the same selection that covers use of cookies and drove the discussion in 2012 about the Cookie Law.’

While some publishers may be going back to their legal teams just to be sure – the majority of publishers offered a quiet, unified yawn.

There is nothing new here and publisher’s current compliance approach for the ePrivacy Directive still applies. Guidance on compliance – including consent – was provided in May 2013 in a guide from the Information Commissioner’s Office.

The claim by Hanff is that scripts are covered by the same ePrivacy Directive and that consumer consent must be obtained prior to the installation of these scripts. A literal interpretation of Article 5(3) would support this. This has been the regulatory environment since 2012. The main change in a user experience on the web is new banners advising consumers of the use of cookies, banners which most consumer click away and largely ignore.

Now Hanff, also known for his work in complaints against Phorm in 2008, has received written confirmation from the EU Commission has written to him confirming that the detection of adblockers using scripts is in breach of the ePrivacy Directive and that if a local regulator (like the ICO in the UK) fails to act, then he should file ‘infringement proceedings’.

On Wednesday (20 April) he then posted the relevant pages to his Twitter feed:

Hanff has been planning for some 14 months to launch a series of ‘test cases’ in multiple EU member countries challenging the use of adblock detection via scripts. With this new letter he is even more emboldened in charging ahead with his plans.

In another strange twist, it has been reported that the EU Commission feels that the presence of an adblocker should be interpreted by a website as a user’s expression of their desire not to be tracked as per Recital 66. Of course if a publisher is not allowed to detect this, how can they be expected to respect it?

And what would a publisher likely do if they count no longer detect if a user had an adblocker installed?

One option would be to simply block everyone and require that everyone who accessed the website first offer their express, informed and unambiguous consent by becoming a registered user. And on that initial splash page would be a few pieces of content and marketing language to explain to consumers that they were now required by law to force user registration before continuing (or at the very least to expressly consent before dropping a single cookie or script).

Frankly – this doesn’t seem likely as a possible outcome. This would significantly degrade the user experience and would add multiple layers and barriers to access content.

Beyond all of the letters from the EU Commission, threats of imminent lawsuits and general scaremongering by a single individual, what does it all really mean? What reaction does it deserve?

Well – it deserves more than a collective yawn, all of these threats and vitriol should form the basis for some grown up conversation and thinking. The good news is that the digital media industry is already moving in a new direction.

Publishers have been given a new mandate by their readers to reduce intrusive adverts and to improves the overall user experience. Advertisers have been put on notice that bulky display advertising is going to have to change and will likely move to lower volume, higher value spots demanding a far greater level of creativity and user engagement. And the wholesale collection of data on consumers without their consent will not be possible going forward. It’s all good.

Ad blocking detectors are also a good thing, these tools give publishers an opportunity to engage with their readers and reassert the value exchange taking place – great content in exchange for consumer attention shared with advertisers or in return for some form of payment per article or per subscription.

Of course some publishers with less than stellar content may find it difficult to have these discussions with their readers and this may result in some poor content going away – not such a bad thing.

When it comes to privacy, consent and permission it’s all about to change – again. Most big publishers know that the ePrivacy Directive – the basis of all of Hanff’s challenges – has been recently updated in the new General Data Protection Regulation (GDPR) and that this new legislation comes into force in 2018.

There is significant new language regarding the collection of consumer data and the requirement for ‘unambiguous consent’. Legal teams and regulators are already working to determine how to translate compliance with the law into a user experience that is good for consumers and allows publishers to offer ad supported content.

If there will be any changes to how publishers engage consumers when it comes to privacy, their focus will be on ensuring that they are compliant with the new GDPR legislation rather than trying to retrofit their sites for the 2011 ePrivacy Directive.

This is not a ‘day of reckoning for publishers’ and it’s not a win for consumers or for adblockers. This is a time of change. The actions by Hanff are merely another nudge for publishers to continue to evolve.

Napster disrupted the digital music industry when it launched in 1999 – even now digital music is changing. Napster as pure P2P file exchange no longer exists, the same will be true of adblockers like Shine and AdBlock Plus. In a few years the digital media industry will have changed and continue changing – but adblockers will be a thing of the past. Adblockers will have served their purpose and the industry will move ahead.

Consumers, publishers, ad networks, brands – they are all stakeholders. And with new power from adblockers and EU privacy regulations consumers are reasserting their role as a stakeholder in this ecosystem. A new balance will be achieved and consumers will have access to great content, publishers will produce content in a profitable way and advertisers will continue to subsidise content and engage consumers in new and meaningful ways. It will all be part of a balanced future for media.

Troy Norcross is principal/digital strategy and innovation at SER Associates

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