knowledge 3 October 2016 |

Network-Level Ad-Blocking Suffers Potentially Fatal Blow

Network-level ad-blocking is the practice of an ISP utilising software to block most, if not all, adverts from appearing on websites when accessed by customers. The most common justification for this has been that adverts that appear on websites, and particularly mobile adverts, consume a large amount of data which a user has not necessarily requested. However, the software also enables an ISP to substitute adverts, or only let certain adverts be displayed where an agreement has been reached with an advertising network. This has led to arguments from advertising networks that the purpose of the adblocking is to extract payments from them, rather than to protect consumers from harm.

Given the level of intervention into a network that network-level ad-blocking implies, it has inevitably led to questions by web companies and open internet advocates alike as to whether the practice contravenes net neutrality principles

Net Neutrality Principles

Under the Regulation, ISPs are prohibited from engaging in traffic management measures which “block, slow down, alter, restrict, interfere with, degrade or discriminate between specific content, applications or services”. However, despite this general prohibition, the Regulation allows traffic restrictions in the following circumstances:

• Restrictions required in order to comply with law;
• Restrictions required to preserve the integrity and security of the network; and
• Restrictions required to prevent network congestion (provided equivalent categories of traffic are treated equally).

As network neutrality advocates noted at the time of the passing of the Regulation, the effect of the prohibition will turn on how the scope of the permissible restrictions is interpreted by national regulatory bodies.

The BEREC Guidelines

Pursuant to its powers under Article 5(3) of the Regulation, the Body of European Regulators for Electronic Communications (BEREC) has recently issued guidelines on the implementation of the net neutrality rules. The guidelines provide useful guidance on many aspects of the net neutrality principles and how the various exceptions will be interpreted in practice. In an interesting move, BEREC chose to specifically single out network-level ad-blocking as an example of a practice that falls within the general prohibition. Although BEREC noted that network-level ad-blocking would be permissible if it fell within one of the exceptions, it seems unlikely that an ISP could successfully argue that an exception applies. It will now be up to the relevant national regulatory authorities to apply BEREC’s guidance to any network-level ad-blocking that is implemented by ISPs within their jurisdiction.

Impact

Although the guidelines issued by BEREC deal a blow to network-level ad-blocking, BEREC points out that the Regulation does not place any restrictions on ad-blocking programs operated by consumers at a device level. As such, the more general debate around the legitimacy of using ad-blocking technologies in connection with ad-supported services is only likely to intensify. Further information is available from: Alternatively, your usual contact in McCann FitzGerald will be happy to help you further.