| > As such, any such provision has to be layered on higher up the stack. The current solution is to put it in the site's terms of service. But the problem is that I never signed that TOS. We keep on coming back to this, but putting a TOS somewhere on your site is not binding. You need to get my informed consent. In the same way, if I stuck up a contract on my public blog that said "by fulfilling any HTTP request I make, you grant me license to republish your content," I couldn't steal everyone's artwork off of DeviantArt and claim "well, we did have a contract." We have a really good solution for this problem - put a 401 (unauthorized) page in front of your content, which is accurate because the site operator has decided that someone who hasn't agreed not to block ads is not authorized to view the content. Then require me to sign the TOS before you authenticate me. That would be an enforceable contract. Ad blocking is a solved problem for anyone who's really willing to block requests and require authentication. Of course, the vast majority of sites don't want to do that because it's incredibly annoying to the average user. But that's not a problem with the technology - informed consent is fundamentally annoying to procure in any context. It will always be more work to get someone to voluntarily agree to a set of conditions than it will be to just give them something. On the web, that's just more of a problem because quick, impulsive, uninformed clicks currently form the majority of web revenue. So site operators have discovered that it is more profitable not to get informed consent and just hope that nobody blocks your stuff. The downside is that you have no TOS to enforce because you never got anybody to agree to it. But, that's a downside many sites are willing to live with. The conflict comes when courts rule that the implied contract that users believe they're agreeing to isn't the terms that ad networks wanted. I find that often what ad agencies want is to have legally binding implied contracts, but only in one direction and under terms that they can change at any time. I'm all for contract law, but if it's the users responsibility to understand a site's TOS before they request information, shouldn't it also be the site's responsibility to understand a user's TOS and intent before they fulfill a request? That's what web authentication does. It gives sites the opportunity to form a contract with a user, and to tell users who don't want to form a contract "sorry, but we have conditions before you view this." |
Yep. Totally agree. Consent needs to be informed. In order for anything i'm saying to apply, the agreement must be meaningfully made. Personally, I consider a checkbox saying "I won't use an ad blocker" to be sufficient to declare that agreement valid.