The CMA launched its investigation into Google and its conduct in relation to the ‘ad tech stack’ on 25 May 2022. ‘Ad Tech’? I hear you ask. Well, I am glad that you did. Ad Tech is the name given to the collection of algorithms that deal with online advertising. So, if you want to advertise in a magazine (remember those?) or a newspaper, you will probably be using Ad Tech. You may not know it, but there we are.
The CMA opened its investigation because it was concerned that Google dominated the market. This brings into play the Competition Act 1998 chapter 2 which deals with the abuse of market domination by corporations.
The CMA is yet to publish its findings. In March 2023 the CMA decided to join this investigation into another looking separately into Google’s dominance of ‘header bidding services’. Header bidding is the process of publishers showcasing their advertisements to a lot of potential partners so that partners can bid for them on a competitive basis.
The Bidding Header case and the Ad Tech cases are now being combined.
Across the Channel, the EU commission is investigating Googles’ ad tech. The EU is more advanced in its investigation. The EU has advised Google of its preliminary findings. The Commission has found that Google’s practices are anticompetitive. They have found that, since 2014, Google favours its own online advertising tech services to those of others. Specifically, the AdX and DV360 tool was favoured in ad selection auction run and in placing.
If the preliminary findings become final, Google faces fines of up to 10% of worldwide turnover, a prohibition notice and structural remedies. By structural remedies we mean that, where the Commission considers that money remedies or prohibition notices are not sufficient, the Commission may order divestment of the tools concerned.
All that being said, do not hold your breath. By the time Google takes this all the way through the General Court to the Court of Justice, I will be retired and living in Eastbourne.
But the Commission and the CMA have developed a more aggressive approach, and this more aggressive approach is mirrored by the USFTC in its evidence to the US Senate Commerce Sub Committee on 1 February 2022. The US courts are still undecided as to whether to adopt the approach of the USFTC as a ‘cop on the beat’, but a direction of travel has been signalled… so, anti-trust lawyers take note, there are new sheriffs in town.
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