Ad Tech & Programmatic

Publishers say companies selling contextual ad tools are scraping their data unfairly

Groups representing The Guardian, Vice, the BBC, and McClatchy claim these companies have infringed upon their “intellectual property.”
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Francis Scialabba

6 min read

Trade groups representing US, UK, and Canadian publishers think companies offering contextual advertising services might be overstepping their bounds.

The Ozone Project, Local Media Consortium, and the Association of Online Publishers—groups representing The Guardian, Vice, the BBC, McClatchy, and others—have raised concerns that some ad-tech firms may have scraped and sold publisher data unfairly, possibly infringing upon a publisher’s “intellectual property.”

The beef: Publishers are saying, “Hey, wait a minute, you didn’t ask if you could do that,” accusing these firms of using the content on their sites to create contextual advertising segments for clients without their permission and outside the bounds of their contracts. Meanwhile, publishers are pitching advertisers on direct contextual advertising deals themselves.

Why is this important? The briar patch of programmatic advertising has created distrust between advertisers looking for scale and publishers complaining of an ad-tech tax.

Now that third-party cookies are dying and some ad dollars are shifting to contextual advertising—ads based on the content of the media, not on personal information—publishers want a (better) seat at the table and stronger terms as the industry adopts new technologies.

“Regardless, if it’s contextual content or third-party audiences, it’s the same manifestation of somebody in the middle taking something from the publisher,” said Scott Cunningham, a consultant for the Local Media Consortium, which represents US publishers like Slate and McClatchy, and a founder of the Interactive Advertising Bureau’s Tech Lab.

Just because you can…

Integral Ad Science—a vendor that offers brand safety and ad verification services to advertisers—started selling contextual targeting tools in 2020, and was explicitly named in a memo written by the Association of Online Publishers shared with Marketing Brew.

It’s one of “several high-profile” vendors accused of collecting and selling data outside of a publisher’s licensing agreements, something the trade group says is not only a violation of publisher terms and conditions, but also the “potential infringement of basic intellectual property rights.”

  • In practice: The contextual targeting segments are typically innocuous. In January, IAS published segments for advertisers to “capitalize on Easter cheer,” offering “cookieless targeting” and “scaled content adjacency” 🤢. The segments include “food and beverage — sweet snacks,” “games and toys — children’s toy,” “Spring break,” and “spring fashion.”
  • These segments are used to “target Easter-related content” that’s relevant to those categories—content that’s coming from…publishers.

“It’s our metadata on our page, our IP, and it’s acquired without consent,” said Richard Reeves, managing director of the AOP, who wrote the memo in fall 2021.

The AOP has since raised this issue with WPP, the Trustworthy Accountability Group (TAG), and the UK’s Information Commissioner’s Office, its data protection authority, who Reeves said is investigating to determine whether this is a privacy issue.

The AOP first recognized the issue when publishers began mentioning an increase in web crawler activity on their sites.

“What we are now seeing is people almost brazenly walking through your home, and removing your furniture, and selling your assets elsewhere. And you don’t even know that they’re doing it, or you can’t receive any value for it,” Reeves told Marketing Brew. “Just because you can doesn’t mean to say you should.”

A different organization, the Ozone Project, a consortium of UK publishers including The Guardian, the Independent, and The Telegraph, pointed out the following in a recent memo:

  • “Publisher audiences & their interests are harvested on industrial scale by 3rd parties who sell it to Marketers in competition with the Publisher(s) they took the data from.”
  • “As the market hails contextual data as the savior post-cookie, and points to unauthorized contextual data as its solution, it’s time that this issue is addressed.”
  • “Whilst major brands invest millions of dollars in CSR initiatives, most are unaware that their advertising supply-chain has been compromised by third-parties who have sold them unlicensed (potentially stolen) Publisher intellectual property (IP).”

Brand safety or contextual? Why not both

Companies providing contextual advertising products, like IAS, DoubleVerify, and Oracle, often use web crawlers and artificial intelligence to understand what’s happening on a website. They use these capabilities to offer different services to marketers.

  • Some are related to brand safety, like helping marketers avoid having their ads show up next to graphic content on screen, or avoiding propaganda.
  • Or content verification, aka making sure a brand’s ad is viewable.
  • These tools are allegedly so good, they can determine whether an article is about a tennis match, a review of a new phone, or the stock market.
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Brands hire these companies and publishers seemingly put up with it because they want those brands to advertise on their sites. While this data can tell advertisers whether a site meets a threshold for an ad buy, it can also be used to bundle together targeting data, which is then usually sold through a demand-side platform.

Therein lies the rub. Publishers have generally accepted that these companies will crawl their sites in the name of brand safety, viewability, and the like, but they haven’t agreed to let contextual vendors sell this data for targeting, argued Danny Spears, chief operating officer at the Ozone Project. And that’s in “direct competition” with the publisher’s own sales team.

“[This] possible IP infringement is creating a set of products that provide an unlicensed alternative to legitimate, direct transactions with publishers, and there’s only so much ad spend in the market,” he told Marketing Brew. “Contextual targeting is valuable. There’s only one source of it—it’s publishers.”

In other words, go directly to the source.

More specifically, IAS, one of the largest ad verification companies in the world, has told publishers that it’s all or nothing—that a publisher can’t pick and choose how IAS scans a site or what it does with that data. “They won’t separate it,” said Reeves.

IAS declined to answer a detailed list of questions sent by Marketing Brew.

The company, which went public in June of last year, told investors that it expects more advertisers to adopt contextual targeting and that its own contextual tools, rolled out in 2020, would benefit.

“The march toward a cookieless future is a tailwind for our contextual business,” said Lisa Utzschneider, IAS’s CEO during the company’s Q4 2021 earnings call in early March.

During that same earnings call, Utzschneider detailed that its contextual targeting tool, called Context Control, represented 38% of IAS’s total programmatic revenue. The company’s total revenue was $102.5 million.

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