Ad Blocking Takes Center Stage

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By Richard S. Eisert and Truan Savage

Ad blocking software has long been a concern of agencies, marketers and publishers, but recent developments (particularly the expansion of ad blocking technology to the mobile environment) have pushed the issue to the forefront. Now both marketers and publishers are beginning to fight back.

On the more aggressive end of the spectrum, some publishers are considering legal action against ad blockers. It will take some time, however, for any such lawsuits to play out. While the industry works through potential litigation, publishers are continuing to look at practical ways to engage users and deter the use of ad blockers.

One reasonably simple approach finds publishers revising their terms of use to prohibit the use of ad blocking software. For example, the Chicago Sun-Times’ terms of use states, “you agree that you will not … cover or obscure any banner or other advertisement” on its website. This kind of language, although aimed at users, may also be intended to set up possible future litigation, including litigation against ad blockers themselves, who publishers may claim are tortiously interfering with their user contracts.

Other publishers have resorted to restricting access to content either by erecting paywalls or, as demonstrated recently by The Washington Post, testing technology that prevents users running ad blockers from viewing certain content. It remains to be seen how successful these approaches will be among consumers who are increasingly accustomed to accessing content for free.

Marketers and their agencies have also begun to focus more on content and environments less likely to be blocked. This has contributed to the prevalence of native advertising, as well as increased reliance on branded content and in-feed advertising on social platforms. Similarly, some publishers have been improving the quality and relevance of ads on a page, while also limiting the number of ads. This approach makes sense, since it is said that the use of ad blockers is on the rise largely due to increasingly intrusive and annoying ads.

No matter the approach, advertisers and marketers should take steps to ensure they are not being charged for ads that have been blocked. Technology – like a sophisticated ad server – can help ensure you are not paying for ads that never appeared.

Richard S. Eisert is a partner in the Digital Media, Technology & Privacy Practice Group of Davis & Gilbert. He may be reached at 212.468.4863 or reisert@dglaw.com. Truan Savage is an associate in the Advertising, Marketing & Promotions Practice Group. He may be reached at 212.468.4956 or tsavage@dglaw.com.


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