implied-in-fact contract. In 1917, the
U.S. leased a pier from the Baltimore
and Ohio railroad for the purpose of
handling supplies destined for the
war in Europe. An earlier fire was believed to have been an act of sabotage,
so soldiers were deployed to guard the
pier and surrounding equipment. The
weather was cold, and the troop commander often complained about the
tents in which his men were forced to
live. A railroad official offered to build
temporary barracks. Though there was
never any discussion of compensation,
the barracks were built. The railroad
later sued to recover the cost of the
construction, arguing there had been
an implied-in-fact contract. In what became the 1923 case of Baltimore & Ohio
R. Co. v. United States,
2 the Supreme
Court disagreed. The Court stated that
an “implied agreement” required “a
meeting of minds inferred, as a fact,
from conduct of the parties in the light
of surrounding circumstances.” The
Court found there had been no such
meeting of minds, as the railroad company never intimated that it would expect payment from the government.
It follows that there are several reasons the alleged quid pro quo of viewing
ads in return for free Internet content
fails to rise to the level of an implied-in-fact contract. First, as with the Baltimore
& Ohio case, there was no unambiguous
offer. The Internet content consumer
is rarely told precisely what is going to
be loaded into his or her Web browser,
and what is expected in return. Content consumers suffer the embedding
of ads and, on occasion, trackers and
other forms of spyware into their Web
browsers without receiving any notice
from the content provider whatsoever.
In fact, as we have seen, the content provider may not know what is being injected into the consumer’s browser.
Second, the alleged agreement fails
to satisfy the unambiguous acceptance
element. Unlike the lawn-mowing example, there is no prior conduct that
indicates a general understanding that
an agreement is in place. The popularity of ad blockers20, 30, 31 indicates that
most consumers do not want to see the
ads, and clearly have not agreed to do
so. A Reuters survey provides further
evidence, indicating that even those
who do not employ ad blockers are ignoring or avoiding the ads:
More generally, a third or more (39%
in the U.K. and 30% in the U.S.) say they
ignore ads. Around three in 10 (31%/29%)
say they actively avoid sites where ads interfere with the content.
Are Ad Blockers Unethical?
In After Virtue, Alasdair MacIntyre describes the breakdown in ethical argument that occurs when the foundations
for ethical systems are cut away, leaving proponents of differing perspectives to argue past each other without
any basis for decisive engagement.
blocking provides a canonical example, as we have one group arguing for
individual rights (the right to receive
payment for one’s effort in providing
content), while the other group argues
for the general welfare (an Internet devoid of continual distraction caused
by tasteless advertising). It is not clear
how the two arguments can be reconciled, or how one can clearly overcome
the other. We suggest a solution lies in
a technologically mediated meeting
of minds, but before we consider the
solution, we offer a more detailed account of the ethical arguments.
The utilitarian approach, first propounded by Jeremy Bentham and John
Stuart Mill in the late 18th and early
19th centuries, is based on the familiar precept that “it is the greatest happiness of the greatest number that is
the measure of right and wrong.”
what follows, we will consider act utilitarianism, which focuses on the consequences of individual actions. We will
also substitute “well-being” for “
happiness” to counter some of the more obvious criticisms of utilitarianism.
Does the use of ad blockers create
the greatest well-being for the greatest
number? Those affected by the decision to block ads include the following:
˲ Ad blocking users,
˲ Ad viewing users,
˲ Content generators,
˲ Content publishers, and
Should users choose to employ ad
blockers, the following will arguably
˲ The ad blocking users will see fewer advertisements.
˲ The content generators will receive
less revenue per reading user.
˲ The content publishers will receive
less revenue per reading user.
˲ Advertisers will seek other venues
for their advertising dollars.
˲ Some content generators will stop
˲ Some content publishers will stop
˲ Some content publishers will publish content of lower quality.
˲ There will be less free content
available to all users on the Internet,
and the content that remains freely
available will, in some cases, be of reduced quality.
It is important to provide some context for the suggestion that the quality
of online content will be diminished by
a general acceptance of ad blocking.
Newspaper journalism was in decline
well before the advent of ad blocking, or
even the advent of the Internet, primarily because of the failure of its core business model.
15 The business model was
that of a quasi-monopoly: competition
was limited, so that a local paper could
charge higher prices for advertising,
and then use the revenue to maintain
reporters across the world. In essence,
the local Wal-Mart paid for the Baghdad bureau through its advertising dollars. The limit on competition was due
to a fact of technology: printing presses
were very expensive to operate and
maintain, so all but the largest munici-palities could only sustain one or two
(print) newspapers at any given point in
22 In a pre-Internet world, the papers acted as an intermediary between
advertisers and consumers, charging
both for the opportunity to communicate. In a multi-newspaper market, the
equilibrium was often unstable; a notable scoop could send more advertising
dollars to the scooping paper, allowing
the scooper to grow (literally) fatter and
more attractive to the buyers.
The unraveling of this relationship
began with the television era and the
movement of affluent readers from the
inner city to the suburbs. National and
retail advertisers moved their dollars
to television, and newspapers came to
depend more on classified ads.
the advent of the Internet in general
and Craig’s List in particular (founded
in 1995), classified advertising revenue
also began to leave the newspapers’
balance sheets. By 2010 the newspaper industry was in deep decline, with
many major players facing bankruptcy
(for example, the Tribune Company in