Is it illegal to block ads?
According to multiple court cases, the choice to filter your own http requests is legal and ultimately up to you. It’s your computer (or your mobile device). You have the right to decide which content and scripts enter your system.
The best way to understand this right is that adblockers are basically “selective downloaders“. They decide which content to download and view, and which content to ‘not download’ and ignore. That simple choice has been protected multiple times in multiple court decisions.
But while that means ‘not downloading ads’ is inherently legal. It may not mean all adblockers are operating legally.
The problem is that “selective downloading” isn’t all adblockers are doing. The rabbit hole goes far deeper than just ‘not downloading advertising‘…
Adblockers and Anti-Circumvention laws
Adblockers aren’t just blocking ads.
Adblockers also employ sophisticated circumvention technologies that evade the defensive measures employed by publishers. This crucial feature marks an important legal line in the sand.
“Anti-adblock” or “access control” technologies (like BlockAdblock) restrict access to the copyrighted content of websites so that readers can access content only in a manner which the publisher approves of.
Specifically, access control technologies like BlockAdblock restrict browsers equipped with adblock plugins from accessing a website’s content. Users who attempt to selectively download only the copyrighted content, without the accompanying advertising may be barred from access.
And here’s the rub:
While blocking ads has been deemed legal in court, circumvention of access controls is expressly against the law in Europe, the United States and in all signatory-nations of the World Intellectual Property Organization’s Copyright Treaty.
In other words: You’re free to block ads but as soon as an access-control technology enters the picture, you may not be within your rights to attempt to circumvent it by technological measures.
And that’s exactly what so many adblockers attempt to do — with varying levels of success, depending on the adblocker and the anti-adblock technology being deployed in any given case.
What laws are being broken?
Anti-circumvention laws in the US, EU and countries who have signed the WIPO treaty are quite similar.
European national laws must reference Article 6 of the EU Directive 2001/29/EC
- Member States shall provide adequate legal protection against the circumvention of any effective technological measures, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective.
- Member States shall provide adequate legal protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services which:
- (a) are promoted, advertised or marketed for the purpose of circumvention of, or
- (b) have only a limited commercially significant purpose or use other than to circumvent, or
- (c) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of, any effective technological measures.
- For the purposes of this Directive, the expression ‘technological measures’ means any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subjectmatter, which are not authorised by the rightsholder…
In other words, it’s not okay to circumvent technological measures which restrict access to a work. It’s also not okay to manufacture or distribute products whose purpose is to circumvent access controls. And it’s up to the publisher / rights-holder to decide what the terms of said access are.
Likewise, across the pond in the USA, the Digital Millennium Copyright Act (DMCA) includes several sections relevant to the circumvention of website access controls:
Section 103 of the DMCA includes this very clear language:
No person shall circumvent a technological measure that effectively controls access to a work protected under this title.
And “technological measure” is defined as follows:
(3)(B) a technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.
Clearly, any anti-adblock defense used to protect website content falls under the description of a “technological measure” requiring a process or treatment to gain access to the work. (That “process or treatment” being the detection of no adblocker, in this particular case).
For more information on how adblockers violate the DMCA see the previous post: Is Adblock Plus violating the DMCA
It’s not adblocking that’s illegal. It’s the circumvention of ‘technological measures’ that is.
Certainly, this doesn’t mean that blocking ads is illegal. But it does strongly suggest that the additional layer of technology employed by current-generation adblockers to circumvent the technological defenses of adblock-detection scripts is illegal.
Anti-circumvention law was enacted for a purpose.
That purpose is to protect “remuneration schemes” and to”foster substantial investment in creativity and innovation”, to use the opening language of the EC Directive.
A harmonised legal framework on copyright and related rights … will foster substantial investment in creativity and innovation, including network infrastructure, and lead in turn to growth and increased competitiveness of European industry, both in the area of content provision and information technology and more generally across a wide range of industrial and cultural sectors. This will safeguard employment and encourage new job creation.
Somewhere along the line that primary purpose appears to have been replaced with something less sustainable, and a whole lot less legal.