One of the biggest current issues in the digital media landscape in the winter of 2016 is the rise of Ad Blocking software.

Millions of users around the world have installed ad blocking software on their computer browsers.  These ad blockers include systems like AdBlock Plus.  They are similar in some ways to apps like Abine, Disconnect and Ghostry that do not block ads, but rather allow consumers to stop the functioning of third party trackers, preventing the placement of high-value targeted ads on the user’s web browser.

While many consumers find the notion of a “commercial free” internet to be appealing, the rise of ad blockers means that content creators are unable to monetize their web traffic.  Whether or not TV viewers leave the room, or magazine readers turn the page, the publisher still gets paid for running the ad.  In the interactive context, the blocking of the ad means that the content creator does not get paid – and some commentators have compared ad blocking to theft. Read more>

The digital media industry is worried.  Whether ad blocking represents a small portion of visitors – as it does for certain domestic audience segments – or nearly half – as it does for sites targeting the younger demographic, particularly in Europe, the media industry is starting to focus on how to respond to ad blockers, in order to retain the ability to monetize the digital audience.   

Several tech start-ups are offering solutions for the content creator.  Various companies, including Mezzobit, provide tools that enable the content distributor to respond to the presence of the ad blocking software. 

Certain technologies invite a conversation with the visitor, in order to encourage the visitor to turn off the ad blocker or compensate the content creator through a subscription or other payment.  Other solutions provide ads that are not blocked by the ad blockers or meet the blockers’ “acceptable ads” standards.  These are generally generic ads – including the sort of text-based ads sold through the Google AdWords program, but may not be highly produced, engaging advertising.  And then some providers circumvent the operation of the ad blockers, and present various sorts of ads notwithstanding the operation of the ad blockers.

At a recent event hosted by Digital Content Next in Washington DC, various speakers discussed the reason for the rise of ad blockers and how different sorts of digital publishers are starting to respond.

FTC Commissioner Julie Brill raised one point that may not be obvious to digital publishers.  She reminded the audience of certain settlements the FTC had reached with Google, including the $22 million settlement in 2012, where the FTC took enforcement action against Google in connection with Google’s use of consumer data.  This was a reminder that digital publishers should consider what their privacy policies say in light of how ad blocking response tools actually work.

The FTC may look carefully at businesses that implement tools that directly circumvent the express wishes of visitors to their sites.  So if the ad blocking response tool the publisher adopts “goes around” an ad blocker, the publisher should consider whether it needs to update disclosures in its privacy policy.

This concern falls in the fundamental category of “say what you do and do what you say”.  The recent FTC settlement with NOMI, a tech start up with an inaccurate privacy policy, is instructive:  The FTC has been willing to take enforcement action even in the absence of measurable financial harm to consumers.  The fact of the deceptive and misleading privacy policy was a sufficient basis for FTC action.

The FTC takes seriously the commitments businesses make in their privacy policies, and if the business is doing something other than what the policy states, the enforcement risk is real.  Publishers that implement aggressive ad blocking response tools should assess whether their privacy policy is accurate in light of this sort of enforcement risk.