YouTube’s ad blocking crackdown is facing a new challenge: privacy laws

As YouTube tightens its restrictions on ad blockers, privacy advocates in the European Union are betting that government regulations can put a stop to the crackdown. 

One privacy expert, Alexander Hanff, filed a complaint in October with the Irish Data Protection Commission (DPC). Hanff argues that YouTube’s ad blocker detection system is a violation of privacy — a charge Google denies — and illegal under EU law. “AdBlock detection scripts are spyware — there is no other way to describe them and as such it is not acceptable to deploy them without consent,” Hanff tells The Verge. “I consider any deployment of technology which can be used to spy on my devices is both unethical and illegal in most situations.”

The fight against ad blocker detection isn’t anything new, but YouTube’s “global effort” to stop ad blockers has renewed interest in the topic. Sites like YouTube can detect ad blockers by either downloading JavaScript code that checks whether anything on the page has changed or by detecting when the elements required to load an ad are blocked, according to The New York Times. 

Here’s what YouTube displays for users who have ad blockers enabled.

While YouTube started blocking ad blockers as a “small experiment” in June, YouTube later confirmed to The Verge that the company has ramped up its efforts. That means more users with ad blockers enabled are finding themselves unable to watch videos on the platform. Instead of showing the video, YouTube displays a prompt that encourages users to either allow ads on YouTube or subscribe to YouTube Premium.

This move hasn’t gone over well with users and privacy advocates alike. A report from Wired reveals that people are installing and uninstalling ad blockers at a record pace as users search for an ad blocker that isn’t affected by YouTube’s restrictions. Meanwhile, YouTube maintains that ad blockers violate the platform’s terms of service and prevent creators from earning revenue from ads.

Hanff first reached out to the European Commission about the use of ad blocker detection tools in 2016. In response to his concerns, the commission confirmed that scripts used to detect ad blockers also fall under Article 5.3 of the ePrivacy Directive, a rule that requires websites to ask for user consent before storing or accessing information on a user’s device, such as cookies. “Article 5.3 does not limit itself to any particular type of information or technology, such as cookies,” the commission wrote at the time. “Article 5(3) would also apply to the storage by websites of scripts in users’ terminal equipment to detect if users have installed or are using ad blockers.”

It doesn’t seem like this had any meaningful impact on how websites detect ad blockers, though. The European Commission seemed to reverse its stance in a proposed reform of its privacy law in 2017, stating that website providers should be able to check whether a user is using an ad blocker without their approval.

Hanff’s most recent complaint to the commission references his earlier letter. It calls upon the DPC to take action against YouTube and stop it from using ad blocker detection tools. Hanff tells The Verge that in addition to violating Article 5.3 of the ePrivacy Directive, he believes it’s also a breach of the fundamental right to privacy under the Universal Declaration of Human Rights and other conventions. Since submitting his complaint, Hanff says the Irish DPC has already acknowledged it and that he has had a call and “a number of emails” exchanged with them. The Verge reached out to the DPC with a request for comment but didn’t immediately hear back.

Hanff isn’t the only advocate who opposes YouTube’s ad blocker clampdown, either. Patrick Breyer, a German digital rights advocate and member of the European Parliament, writes on Mastodon that “YouTube wants to force us into surveillance advertising and tracking with an anti-adblock wall.” Breyer says he is also asking the European Commission about the legality of ad blocker detection systems under the ePrivacy Directive.

YouTube spokesperson Christopher Lawton responded to Hanff and Breyer’s challenge by reiterating the same statement provided to The Verge last month, noting that YouTube has launched a “global effort” to crack down on ad blockers. Lawton adds that the company will “of course cooperate fully with any questions or queries from the DPC.”

If the European Commission finds that YouTube’s ad blocker detection system violates the EU’s ePrivacy Directive, the commission might hit the platform with a fine and force it to change the feature. It’s a bit too early to tell how the commission will respond to Hanff’s challenge, but the outcome likely won’t result in any changes to the existing system for those of us in the US.

For now, Hanff isn’t backing down. “I have been fighting for stronger protection of privacy and data protection rights for almost 2 decades,” he says. “If YouTube continues to think they can get away with deploying spyware to our devices, I will bring them down too.”

Additional reporting by Jon Porter.