EU antitrust authorities are finally taking a broad and deep look into Google’s adtech stack and role in the online ad market — confirming today that they’ve opened a formal investigation. Google has already been subject to three primary EU antitrust enforcement over the past five years — Google Shopping (2017), Android (2018), and AdSense (2019). (The AdSense investigation focused on Google’s search ad brokering business, though Google claims the latest probe represents the next stage of that 2019 inquiry rather than stemming from a new complaint). However, the European Commission has avoided officially entering the broader issue of its role in the adtech supply chain.
The Commission said that the new Google antitrust investigation would assess whether it has violated EU competition rules by “favoring its online display advertising technology services in the so-called ‘ad tech’ supply chain, to the detriment of competing providers of advertising technology services, advertisers and online publishers”. Display advertising spending in the EU in 2019 was estimated to be approximate €20BN, per the Commission. “The formal investigation will notably examine whether Google is distorting competition by restricting access by third parties to user data for advertising purposes on websites and apps while reserving such data for its use,” it added in a press release.
Earlier this month, France’s competition watchdog fined Google $268M in a case related to self-preferencing within the adtech market — which the watchdog found constituted an abuse by Google of a dominant position for ad servers for website publishers and mobile apps. In that instance, Google sought a settlement — proposing several binding interoperability agreements, which the watchdog accepted. So, whether the tech giant may seek to push for a similar outcome at the EU level remains to be seen.
There is one cautionary signal in that respect in the Commission’s press release, which makes a point of flagging up EU data protection rules — and highlighting the need to consider the protection of “user privacy”. That’s an exciting side-note for the EU’s antitrust division to include, given some of the criticism that France’s Google adtech settlement has attracted — for risking cementing abusive user exploitation (in the form of adtech privacy violations) into the sought-for online advertising market rebalancing. Or, as Cory Doctorow neatly explains in this Twitter thread: “The last thing we want is competition in practices that harm the public.”
Aka, unless competition authorities wise up to the data abuses being perpetrated by dominant tech platforms — such as through enlightened competition authorities engaging in close joint-working with privacy regulators (in the EU, this is, at least, possible since there’s a regulation in both areas) — there’s a genuine risk that antitrust enforcement against Big (ad)Tech could supercharge the user-hostile privacy abuses that surveillance giants have only been able to get away with because of their market muscle. (Unless you’re Google, it would represent successfully playing one regulator off against another at the expense of users.) so, tl;dr, ill-thought-through antitrust enforcement risks further eroding web users’ rights… and that would be a terrible outcome.
The need for competition and privacy regulators to work together to purge Big Tech market abuses has become an active debate in Europe — where a few pioneering regulators (like Germany’s FCO) are ahead of the pack. The UK’s Competition and Markets Authority (CMA) and Information Commissioner’s Office (ICO) also recently put out a joint statement — laying out their conviction that antitrust and data protection regulators must work together to foster a thriving digital economy that’s healthy across all dimensions — i.e., for competitors, yes, but also for consumers.
A recent CMA proposed settlement related to Google’s planned replacement for tracking cookies — aka ‘Privacy Sandbox’, which has also been the target of antitrust complaints by publishers — was notable in baking in privacy commitments and data protection oversight by the ICO in addition to the CMA carrying out its competition enforcement role. It’s fair to say that the European Commission has lagged behind such pioneers in appreciating the need for synergistic regulatory joint-working, with the EU’s antitrust chief roundly ignoring — for example — calls to block Google’s acquisition of Fitbit over the data advantage it would entrench, in favor of accepting a few ‘concessions’ to waive the deal through.
