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“People have the right to block ads. The people breaking the law are publishers and the ad tech industry”

Alex Spencer

ahanffAn awful lot has been said about ad blocking over the past 12 months. That ongoing war of words has often focused on whether the act of blocking is ethical, or even legal.

This is true regarding the users of ad block technology – I've heard multiple people compare installing a blocker to stealing – but much more so for the companies behind it. At the start of the year, IAB CEO Randall Rothenburg called out Adblock Plus as “unethical, immoral … an old-fashioned extortion racket”. More recently, US newspaper group NAA wrote a letter to ad-blocking browser Brave saying its approach was “blatantly illegal”.

So far, though, that hasn't been borne out in actual legal proceedings. In March, a German court ruled in favour of Adblock Plus in a case brought against its 'Acceptable Ads' program by newspaper Süddeutsche Zeitung, the company's fifth consecutive case to rule in the ad blocker's favour.

In fact, according to Think Privacy CEO and privacy advocate Alexander Hanff, the advertising industry may be looking at this entirely the wrong way round – and may actually be one having to defend its practices regarding ad blockers.

“People have the right to block ads,” Hanff told Mobile Marketing. “People have the right to walk out of the room or switch the channel when their TV shows commercials. People have the right to not look at the ads or destroy the ads in a newspaper. There is no law anywhere that states people have to look at ads, so to call these ad block users 'thieves' is completely false.

“The people that are breaking the law are the publishers and the ad tech industry and the developers of the software that is doing this surveillance, and that needs to end. And it's my goal to stop it.”

Hanff argues that while consumers' right to block ads is protected under Recital 66 of the EU's Citizens' Rights Directive, the use of ad block detection software by publishers – who are increasingly beginning to serve up messages to blockers asking them to whitelist their site, and in some cases even barring their access to content – is in contravention of Article 5.3 of the ePrivacy Directive. And, based on a letter shared by Hanff on Twitter, this is backed up by the European Commission itself.

“Article 5.3 would also apply to the storage by websites of scripts in users' terminal equipment to detect if users have installed or are using ad blockers,” the letter reads.

This isn't an empty gesture, says Hanff: “I'm going to start taking action. I've got the European Commission supporting me on this, I have regulators supporting me on this, and I will start filing legal proceedings within the next four to six weeks.

“I will be filing complaints to regulators in around eight to 10 member states initially, and then expanding that over time over the next 12 months to other regulators. My plan is to file complaints across the whole of Europe eventually.”

Unsurprisingly, this threat hasn't gone down too well with publishers and ad firms. Hanff says the “bile” he has received since posting the EC letter and his intentions on Twitter is “to be expected”, but maintains that claims that he isn't fully informed about the complex technological issues involved are unfounded.

“At the end of the day I worked in technology for 20 years,” he says. “I know exactly how these technologies work at a core level, and I also understand the law.

“Most of the arguments come back with, 'oh, if you do this then the entire web's going to break because all scripts will become illegal'. It's complete nonsense. There are exceptions within the EU ePrivacy Directive which make it very clear that any script or any technology used specifically for delivering a service requested by the user is exempt.”

And what about the ethical arguments against ad blocking? “Everybody's saying that there's this contract between internet users and the publishers,” says Hanff. “But there isn't any contract. Having an ad on your website doesn't automatically give you the right to surveil people. In fact, without consent, it's against the law.”

To publishers and ad tech firms which are deploying ways of detecting and circumventing ad blockers, Hanff says: “I am coming. No bile, no amount of hate or anything that comes my way is going to stop me on this path. I have spent 14 months on this, and if it takes me another five years, I'm going to get it done.

“I will not sit back and allow this industry to continue to break the law without consequence.”