Are ad-blockers legal?

Christopher Dring
Are ad-blockers legal?

Ad-blockers charging websites to have their advertising ‘unblocked' is not illegal.

Two leading legal firms say that although ad-blocker's practices are dubious, it's currently allowed under law.

AdBlock Plus andits‘white list' business model was recently held by the German courts tobe perfectly legal. It seems likely thata court here in the UK would reach a similar conclusion, even though the English courts are not bound by the decisions of German courts” said Nic Murfett of Harbottle and Lewis.

"A more practical approach may be for content providers to reassess the quality/level of intrusiveness of the advertising inventory that's available on their sites, develop their sites so that their content doesn't load properly/at all if ad blockers are used – although there are obvious downsides to this approach as well – or, as the Guardian recently did, prompt their users to help support their sites in another way if they detect that ad blockers are used."

Susan Barty of CMS added: Further cases have been filed in Germany, with one in the District Court of Cologne and another in Munich. These claims consider breach of copyright, the Federal Data Protection Act and competition law. However, the English courts are, in my opinion, even less likely to grant relief.”

She continued: One issue that has attracted some concern is the opacity of the ‘white list' and how it operates. Ad-blocking software companies have refused to publish the lists, and have not had their rate cards publicly available. It is also unclear what will be considered ‘acceptable' advertising by an ad blocker and this criteria appears to be subject to change. Websites relying on ad revenue should try to gather as much information as possible prior to paying to be on the white list as it is uncertain what they are truly paying for.”
So what can be done legally to help curb the issues around ad-blocking?

Nic Murfett says: "The use of ad blockers by a user may be a breach of the relevant content provider's Terms of Use and therefore give rise to an actionable claim in damages for breach of contract. However, whilst this may be the case, it's extremely unlikely that a content provider would ever bring such a claim against any of its users given the difficult PR issues that arise when suing one's own userbase.

Also, in order to bring a successful claim, the relevant content provider would need to first show that the relevant user was actually bound by its Terms of Use which can be tricky evidentially where, as is often the case, those Terms of Use are simply buried at the footer of the site and the user has not expressly agreed to be bound by them.

"Another argument that could be explored is whether by blocking the ads that appear on a site, the user is effectively creating a derivative work of the copyrighted content made available through that site or accessing that copyrighted content in a way that has not been authorised by the relevant copyright owner and therefore infringing the relevant copyright owner's copyright in that copyrighted content. Whether such an argument holds up to scrutiny, however, is another matter and again, the same issue of suing one's own userbase needs to be considered.

"Given the difficult PR issues that arise when suing one's own userbase, it's possible that content providers may instead look to argue that the ad blocker providers are effectively authorising the user to infringe copyright – which is itself an infringement –. However, this line of argument is predicated on there actually being an infringement of copyright in the first place and, as explained above, this may not actually be the case."

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