Sites That Block Ad-Blockers May Be Illegal In The EU

In a response to the CEO of ThinkPrivacy Inc., Alexander Hanff, who inquired about the scope of the e-Privacy Directive’s “Cookie Law”, the European Commission made it clear that it doesn’t “limit itself to any particular type of information or technology, such a cookies”.

The “Cookie Law” states that, “[t]he storing of information, or the gaining of access to information already stored, in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned has given his or her consent …”.

Due to its vagueness, a literal interpretation would mean that the cookie law applies to all types of information – including whether or not a user blocks ads.

According to the European Commission’s response, Hanff asked if the cookie law “covers storage of scripts to detect if users have installed ad blockers in their computers”.

“Hanff’s strategic (and misplaced) use of the word ‘storage’ intentionally loads the question.”, argues BlockAdblock.

“By framing the question this way, he suggests that anti-adblock technology works something like a cookie, somehow involving ‘storage’. Hanff’s entirely misleading premise here is that ‘scripts’, like cookies, must be stored and retrieved as part of their normal function.”, said BlockAdblock. “Hanff’s question mis-represents the basic action of browsers by conflating the unrelated concepts of inline javascript execution with the storing and retrieval of persistent data”.

BlockAdblock explains in their take on the legality of anti-adblockers that anti-adblock scripts can’t report specifically which ad blocking plugins are installed on a user’s system. Those scripts can only ever make educated guesses based upon the performance of a user’s browser, and that they do not require persistent storage (or installation) on a users’ system to function.

In regards to making educated guesses, they state that “[m]aking an educated guess based on browser behavior is absolutely not the same as accessing stored information.”

They also point out that all advanced websites use javascript to detect browser settings and features to operate. “Javascript detection of browser capabilities is a standard and extremely important part of basic website functionality — without which the functionality of most websites would be reduced to circa 1996.”

In BlockAdblock’s conclusion, they shed light on exceptions to the cookie law. One of these exceptions being “when storing/accessing is strictly necessary in order for the provider of an information society service explicitly requested by the subscriber or user to provide the service.”

“Here in the real world of non-taxpayer funded entities, one typically counts the existential financial viability of a newspaper among its necessities. If without advertising revenue the ‘service’ itself would cease to exist, then the defense of vital and life-sustaining revenue streams are clearly ‘necessary’ to provide the service.” said BlockAdblock. “So even if anti-adblock defenses did

‘store’ and ‘access’ locally stored information (which they do not), it would appear that the ePrivacy Directive would protect the right to store and access data when said actions are ‘necessary’ to provide the service.”

Even if blocking ad-blockers turns out to be legal, ads can and do violate users’ privacy and sometimes even deliver malware. Until this no longer happens, ads will continue to be blocked. Even then, they will continue to be blocked because ads are annoying. And if you haven’t realized this already – anti-adblockers are yet another reason to disable javascript.

In other news, the traffic of sites that block adblock users are dwindling.

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