Ad Blocking is in Vogue – Privacy is to Blame (Again)

Ad-blocking programs are getting attention these days, spawned by the proliferation of plug-ins, configurational ad-ons, and announced features in upcoming browser releases. These enable the blocking of ads (or content that “looks” like advertising) by browsers, automating the removal or blocking of some or all content from being viewed on web pages. There has always been a balance (and some would add “tension”) between a consumer’s right to privacy and the marketer’s desire to know more and reach the right customer. The direct intersection of these issues resulting from the rise of consumer and commercial use of the Internet and its complexity, have spawned a degree of heat over these issues, never before seen in history.

From the earliest days of ad-supported radio and television broadcasting there has been a balance between the delivery of cost-effective programming and content and the right of the viewer (today, the end-user) to determine what, when and in what form ads are displayed. Advertising plays a major role in subsidizing delivery of programming. Indeed, while technology may give the individual the ability to skip advertising, there are no legal prohibitions on newspapers, television or radio serving ads along with content. There is also little question that without advertising, the price of content would rise significantly or its availability would diminish, or both.

How do we balance the individual’s right to browse the Internet without the distraction of unwanted advertising, with advertisers’ and publishers’ rights to freely advertise on the web? Consider that freedom of expression. One may not wish to read a book, buy a product, listen to a speech or view an advertisement, but restrictions that automatically block content, whether programming or advertising, should be viewed with great suspicion and justified only where no other means to achieve a proper and legally acceptable balance are available. Coupled with Congressional investigations and media headlines, technology blocking the display of content (including advertising) is increasingly viewed as a “privacy” protection that each consumer must be afforded, challenging rights to free speech, rights that publishers and advertisers and consumers have traditionally enjoyed.

No other medium allows a consumer to receive content and remove the ads placed there by the publisher, distributor or carrier. A consumer cannot request an ad-free newspaper or watch a movie and block the trailer, nor actually remove commercials from a television show. We all receive some unwanted junk—but how many would alter the balance between giving others the right to block content and protecting our freedom of expression. With technology asserted as a benefit to consumer privacy and control, there is a risk that we may erode our right to free speech and the free flow of information. Further, technology that automatically removes content could give rise to an action for copyright infringement. In a 2003 case (In Re Aimster), the 7th Circuit concluded that a form of commercial-skipping “amounted to creating an unauthorized derivative work, namely a commercial-free copy that would reduce the copyright owner’s income from his original program, since ‘free’ television programs are financed by the purchase of commercials by advertisers.” Applying the Aimster reasoning, a court might conclude that automatic ad blocking—creating an ad-free copy of a web page—is analogous to creating an unauthorized derivative work.

So we arrive at an interesting paradox: the innovations that have given advertisers greater potential to focus ads on individuals most likely to want them, are the same innovations that can be used to block the ads. Laws and regulation should only intervene in order to protect the rights of consumers and their ability to exercise control when needed; to protect the rights of rightsholders, hosting and service provider companies; and to protect the rights of freedom of expression for the advertising and publishing community. We never said it would be easy!