Are We Obliged To Load and View Ads on Web Pages?

The Parable of the TV Store

Imagine a TV store that makes money in two ways: selling sets and showing programming. Their store is very comfortable, and they invite people in to watch unlimited shows. The only proviso is that those entering the store have to fill out a survey. There's a lengthy disclosure statement you can ask for, but it's not part of the form. Ads are shown during programming. Sometimes, people buy TV sets, but they're mostly there watching TV.

Also, there may be hidden cameras, which you may or may not be told about. These cameras may record your behavior. And you might be chipped as you leave the store without your knowledge (there's a tiny label on the chip if you find it and get a magnifying glass) that tracks your visits to many different stores with the same business model.

A clever person invents a workaround: it's an invisibility cloak. When worn, you can enter the store and watch all the programming. You never really plan to buy a set at the store, and you walk away during most or all of the ads shown during shows. The store can't count you in their ad sales, which reduces their primary revenue.

Eventually the store seems mostly empty, and it changes its model: if you want to watch TV, you have to become a paid member. Other stores try different plans, like marching everyone out of the TV viewing area into a special advertising room every half hour to watch a special sponsorship message. Still others stores have an invisibility cloak detector at the doorway, and bar those wearing them, but the cloaks keep improving as do the detectors.

Some similar operations that existed before the TV ad/sales shops note that their policy of handing those entering a slick, simple ad flyer every once in a while was less intrusive and resulted in more sales for the advertiser, too, but they admit not every store has the right kind of customers to move into the ad-flyer business.

Many stores go bankrupt. Programming options decrease. And people wearing invisibility cloaks say, "Booooooo."

Implicit Contracts

As someone who has made and continues to make part of his living from advertising, either paid directly to me or in the form of publications that earn money that way paying me fees, I have many feelings about the new content blockers in iOS 9. I've written several stories for Macworld about them: details of how they work, how to use them, and how to target and block popover nagging boxes.

At various times I've:

  • Edited and, for a large part of its run, owned a publication that was founded on the principle of subscriber-only support—no ads. (The Magazine, developed and founded by Marco Arment.) It didn't thrive, so I shut it down while it was still well ahead of expenses, because I found no way to retain and attract subscribers faster than I lost them.
  • Run a web site that benefited hugely from relatively simple banner ads (via what was then Federated Media), direct sponsorships, newsletter ads, and Google Adsense. That was Wi-Fi Networking News, which formed a nice part of my living from 2001 to 2007.
  • Been a writer since 1994 for publications that receive a combination of subscription revenue and advertisements in print and online editions.
  • Run podcasts, like The New Disruptors, that were funded mostly from sponsorships, but a little from patronage (through Patreon).
  • Run four Kickstarter campaigns, two successfully. The two that funded raised nearly $65,000 together.
  • Planning a new publication that doesn't rely on ads, but may have sponsorships.
  • Was a plaintiff in an EFF lawsuit in the early 2000s in which I and other consumers were fighting for an affirmative right for timeshifting (skipping through programs, including skipping ads with smart technology) and spaceshifting (recording and watching programming where we chose). That we fought for this seems absurd today.

You can see my position isn't clear. I benefit from, reject, and fight to reject ads!

I've taken at times a devil's advocate position on Twitter in discussing it this week. When people ask if they're justified blocking ads and other material from a site they visit, I say: No. Instead, you're justified in leaving the site, deleting your cookies, and never returning again.

That lacks nuance, but it's also true from the strictest position. If you don't want to use a site as it's intended, then simply don't use the site. However, that's not the deal as it's presented by most web sites.

When you first arrive at a site, the European Union requires for visitors in its territory at least that a cookie warning message appears if browser cookies are used to track or identify you. That's not a requirement in any other major jurisdiction, although you often see this message outside the EU.

But sites don't otherwise provide a clickthrough agreement. Without an explicit set of terms that guides what our use of their resources—their servers feed us pages, them letting us load copyright-licensed assets on some basis in our browsers—is supposed to be, the offer only implicit rules.

Visitors can establish all sorts of reasons in their heads about what those implicit rules are. Unless a site makes its version of those terms and conditions explicit and requires affirmative consent, it would be exceedingly difficult to make a case that the terms apply.

Logically, we could assume that a site that offers advertisements does so on the basis of earning revenue that allows it to operate. Ethically, once we are aware of that, we are obliged to make a moral decision: either to subvert the basis on which we can reasonably assume the implicit contract stands, or to accept it. If we cannot tolerate the ads and invisible tracking, we should then leave; if we can, we load everything. Any other course is potentially unethical, even if we can justify it to ourselves.

But that assumes further that we have been disclosed with perfect knowledge every bit of JavaScript code and every image tracker and every site database and third-party database used in relationship to us when we visit a site, along with what information about us is being recorded, how it will be retained, how to opt out initially, and how to get the information removed later.

Because all of those arrangements aren't disclosed on our arrival the first time (or ever), and require substantial hunting or the installation of a third-party desktop extension, like Ghostery, to assemble, can we be said to be bound by them? The implicit agreements there take way, way too much from us without informed and affirmative consent. It's an unequal relationship.

Further, sites using one or more third-party networks rarely know all the details of how information about their visitors will be used. Multiply that by dozens—I had 76 different remote items load on a recent visit to a major media site for which I write—and there's zero possibility the sites you visit truly comprehend the impact on your privacy and security.

Add one more element on top: networks that allow self-service advertising purchases, which is most of them, can leak malware onto visitors' computers. Given that there will also be exploits, the ability to push out scripts through ad networks always poses a threat unless it's reviewed ahead of time—and even then, it's impossible to know in many cases.

How Can You Comply If You Don't Know the Terms?

Let me revisit the headline, then: are we obliged to load and view ads?

  • We don't know precisely what a site expects from us when we visit.
  • We don't know how all of our information that is obtained merely by visiting a page will be used.
  • Very few sites could possibly know what the impact of the combination of what they're installing will be on visitors.
  • Ad networks have allowed malware on in the past.
  • Sites are almost never blocking visitors who block loading ads and other elements. (Some are starting to warn or block visitors.)

What I'd propose is that it's legitimate for a site to expect you accept what is visible (static ads with links with tracking embedded only for clicks) and disclosed on first arriving, but not feed out a bit of hidden code or retain anything about you until you are informed and accept the terms.

Related to the EFF lawsuit, Turner Broadcasting's CEO made a ridiculous statement to a trade publication: that "there was a certain amount of tolerance for going to the bathroom." That was a very legalistic way to say that, of course, people didn't need to be plastered to a TV. But his next statement had more insight and was lost: if you create a formal algorithm designed specifically to skip the advertising interval, you're "stealing" the programming.

However, just as with online ads, viewers never accepted those terms, nor did the broadcast and cable industry ever present an agreement of that sort to viewers. Because no one would sign it and it's unenforceable.

Given that web sites don't want to pause your experience by presenting you with a license to accept, they're in an ambiguous situation in asking you to accept tacitly everything they do.

John Bergmayer has a great rundown of the legality of ad blocking: your use of a site is a license, not a contract; a contract requires parties to agree on the exchange of value; and ad-blocking tools likely are perfectly legal because they have substantially non-infringing purposes.

Seems like an impasse, no?

This is all separate from the reality: Users are blocking in huge numbers on the desktop (about 50% of regular online newsreaders in America and 40% in the UK, according to a Reuters Institute survey [PDF]). The same will slowly phase in via mobile. All ads are being treated equally by most visitors, blocking static, non-code-based ones, as well as the most egregious.

Some sites will die. Others will adapt and thrive. But a great change is upon us, because the questions I pose above were never properly addressed over 20 years of commercial editorial web site business development. Even sites that have the highest standards for ads and the least amount of user tracking—or even none—will pass through the same cleansing fire on the way to the next business model.