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UK marketing-led group takes antitrust complaint against Google's Privacy Sandbox to the EU

·5-min read

A coalition of digital marketing firms and others has taken its lobbying against Google's plan to phase out tracking cookies -- by replacing them with alternative technologies which the tech giant claims will protect user privacy -- to the European Union, lodging a formal complaint with the bloc's antitrust regulators.

The self-styled "Movement for an Open Web" (MOW), as the opaque group pushing the complaint is now called (RIP "Marketers for an Open Web"), put out a press release announcing the move today -- and claiming it has provided the Commission with "evidence of Google’s technology changes, how they impact choice and competition", and offered some "potential remedies".

Google and the Commission have been contacted for comment on the complaint.

EU regulators finally opened an investigation of Google's adtech this summer, announcing an in-depth probe in June that they said would include delving into the Privacy Sandbox proposal.

A U.K. probe of that was announced months earlier, in January, and the issue remains a live one on the Competition and Markets Authority's (CMA) desk -- with Google suggesting concessions this summer.

MOW's suggested remedies to EU regulators include requirements that Google should notify the EU ahead of time over any changes to its browser (Chrome/Chromium) -- in order to "enabl[e] privacy and competition assessments to be made by the EU and data protection authorities in line with Google’s proposed remedy to the UK’s Competition and Market Authority and Information Commissioner’s Office", as it puts it.

So here you can see the strange sight of a campaign which was kicked off by a bunch of marketers seemingly lobbying for user "privacy"; but of course they would say that, wouldn't they -- given the EU has already flagged "user privacy" as one of the areas its antitrust investigation will be considering. (Additionally, the U.K.'s CMA and Information Commissioner's Office are doing joint work on the Privacy Sandbox complaint.)

Notably MOW's website still does not disclose exactly who the members of this anti-Google-Privacy-Sandbox/pro-tracking-cookie group are -- aside from the name of its director, James Rosewell (co-founder of U.K. mobile marketing company, 51 Degrees).

Instead it writes that: "MOW is supported by businesses that between them have annual revenues of $40BN+. The name has been changed because more businesses, not just marketing companies, are realising the threat from Privacy Sandbox and the benefit of joining the MOW campaign."

It may be the case that MOW has indeed evolved its membership to include entities with a genuine (rather than opportunistic) concern for user privacy. But given that it won't disclose its membership it's impossible to know...

Commenting on the complaint in a statement, Rosewell said: “The internet was originally envisaged as an open environment outside the control of any single body. Google maintains it is making these changes to protect privacy but if not properly policed, the move threatens digital media, online privacy and innovation.

“Solutions aligned to laws – not self-serving misuse of the web architecture by the members of Big Tech such as Google – are needed. More people, surrendering more personal data to fewer companies doesn’t improve anyone’s privacy while stifling competition and boosting their huge profits even further.”

Lawyer Tim Cowen, who is listed as a legal advisor to MOW and chair of the antitrust practice at Preiskel & Co LLP, added: “We’re asking that the EU Commission create a level playing field for all digital businesses, to maintain and protect an open web. Google says they’re strengthening ‘privacy’ for end users but they’re not, what they’re really proposing is a creepy data mining party.”

Google has already delayed its timeline for implementing Privacy Sandbox -- announcing back in June that it would be taking longer to make the transition away from tracking cookies as a result of ongoing engagement with the U.K.'s antitrust regulator.

It has also offered not to phase out tracking cookies unless or until the U.K.'s Competition and Markets Authority is happy that the transition to alternative technologies can be done in a manner that protects competition and privacy.

So MOW, presumably, scents blood -- spying an opportunity to press the case for a wider, pan-European freeze on Google's Privacy Sandbox play, rather than merely getting some U.K.-specific checks and balances.

Asked if he believes the Commission will be sympathetic to MOW's complaint, Dr Lukasz Olejnik, a privacy researcher and consultant, told TechCrunch: "The Commission currently has its own investigation, so I could envisage that this additional complaint could constitute a case in point. Technology anti-competition proceedings tend to be slow, so the investigation could simply accumulate things in a snowball manner."

"A long time ago, the European Data Protection Supervisor identified potential links between privacy and competition. Opinions and activities followed. However, it is true that EU Competition regulators are prioritising their own principles, rather than focusing on privacy," he also told us.

"In fact, I doubt that any [world] competition regulator would be balancing competition with privacy. They should, I believe, consider it an internal aspect of society and technology. Perhaps it will happen to some degree? But while we do know that UK CMA and ICO are in contact, it is not known if the EC and EDPS are also in sync in relation to the latest investigation."

Given that Google has already proposed a number of legally binding commitments to the U.K.'s CMA around Privacy Sandbox, there are several interested entities in this story who may see a "quick win" if the bloc can be persuaded to swiftly adopt much the same framework, assuming the CMA also agrees to it.

"I think that the most effortless action would be to take the commitments issued to CMA, copy-and-paste them, perhaps modify a bit and hand to the EU. I'm not sure if this would work out so easily. However, it is clear that Google wants to remove this potential roadblock as fast as possible," agreed Olejnik.

"It's quite clear that consumer detriment may happen not only from market conduct but other aspects are notable. For example privacy and data protection standards," he added.

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