The FT has reported that the companies behind some of the US’s biggest newspapers, including the New York Times, the Washington Post and the Wall Street Journal, have issued a cease and desist notice to Brave in a reflection of online publishers’ increasing concern with ad-blocking services.
Bird & Bird associate Alex Payne explains the story behind the story.
What is Brave?
Brave is a web browser that blocks online ads and trackers. It was launched earlier this year and is available on desktop computers and mobile devices. Following an increasing trend amongst internet users, it aims to improve a user’s online experience by combating intrusive and disruptive internet advertising.
However, while it also offers “traditional” ad-blockers (which simply remove advertising from web pages), Brave is developing new ad-replacement software to introduce a feature that will allow readers to remove advertisements which online publishers have placed on their own web pages and replace them with less invasive adverts from Brave’s own advertising network.
Brave intends to take 15 per cent of gross ad revenue from the sale of Brave’s replacement ads on publishers’ sites and pay those publishers 55 per cent, Brave’s ad partners 15 per cent and viewers 15 per cent (if they choose to see the new ads).
Readers can in turn then choose to donate their share to the websites in exchange for which Brave will block all ads on those sites.
Why are publishers concerned and why do consumers use ad-blocking services?
Many online publishers rely on advertising revenue as a key component of their business model. There is anxiety across the industry at the growing trend of ad-blocking by consumers on both desktop computers and, more recently and perhaps significantly, mobile devices. Consumers seem to be concerned by privacy and security issues (particularly with targeted advertising), the disruptive effects of ads on internet speeds and the amount of data required to load a web page due to the volume and size of adverts.
Most of the major web browsers allow their users to block ads and Apple even approved an app into its iTunes Store last year which allows users to block advertisements within mobile apps.
The FT reported that 16 per cent of US internet users and 20 per cent of UK users blocked ads last year and, for example, 37 per cent of mobile users said they’ve blocked ads on their mobile devices in the past month. This is leading to increasing tension between ad-blocking companies and publishers and their advertising partners.
What are the publishers saying?
The US publishers who wrote to Brave argue that Brave’s ad-replacement feature infringes their copyright and unlawfully profits from their web content. They wrote to Brave saying, “your plan to use our content to sell your advertising is indistinguishable from a plan to steal our content to publish on your own website“.
They argue that the revenue share and donation model does not compensate the publishers for the loss of a key income stream (being display advertising from their own partners) and are threatening to seek up to $150,000 in damages per piece of content subject to Brave’s ad-replacement service.
What might happen next?
We’ll have to wait and see how this one develops: Brave issued a statement in response to the publishers’ cease and desist letter saying that the publishers have misunderstood how its ad-replacement offering works and that in fact “Brave’s the solution, not the enemy“.
While recognising that ads pay for much web content and saying they understand publishers concerns with pure ad-blocking services, Brave rejects the claim its browser is performing “republication” and says that its ad-replacing service will financially reward publishers whilst reducing the amount and impact of intrusive adverts.
Leaving aside the specific issues and stances in play with Brave’s ad-replacement service, if ad-blockers continue to flourish as they have done over the past few years, ad-supported web content will come under increasing pressure.
While some online publishers have taken a hard-line stance and refused to load content for users employing an ad-blocker service, it does seem likely that online publishers will, in any event, have to recognise growing consumer concerns about privacy and dissatisfaction with user experience. Consequently online publishers will have to consider how to adapt how they serve ads, such as:
- having fewer ads on each web page;
- using less targeted advertising;
- increasing the amount of less intrusive and native advertising they offer; and
- offering access to content via direct payment to the publisher rather than subsidised access via embedded ads.
Alex Payne is an associate in the media team at Bird & Bird