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Google's Privacy Sandbox targeted by fresh EU antitrust complaint

·9 min read

German publishers are the latest to band together to try to derail or at least delay Google's "Privacy Sandbox" plan to end support for tracking cookies in Chrome via a complaint to the European Commission.

The Financial Times reports that hundreds of German publishers, advertisers and media and industry groups -- including local powerhouse Axel Springer (which publishes titles like Bild and Politico) -- have submitted a complaint to the bloc’s competition chief, Margrethe Vestager, arguing that Google's plan to phase out support for third party cookies from its Chrome browser and replace tracking infrastructure with alternative (and it claims) more privacy-respecting alternatives for ad targeting breaches EU competition law.

This is not a novel argument. The U.K.'s competition watchdog, the CMA, has been considering similar complaints since 2020 -- and is in the process of consulting on a series of behavioral and operational commitments offered by Google in a bid to avoid a full ban on the migration in that market.

Indeed, the regulatory attention to Privacy Sandbox has already contributed to delay the implementation timeline by up to a year, as Google said last summer that the switch would not now happen until the second half of 2023 vs an earlier announcement, in January 2020, when it said it wanted to make the shift "within two years".

While the U.K. is no longer in the EU, Google has said that if the country's Competition and Markets Authority accepts its Privacy Sandbox commitments it will apply them globally -- meaning they would also apply in and be relevant for the EU (which is not the same as saying they would be automatically acceptable to the bloc's own regulators, however).

German publishers and advertisers don't seem impressed by Google's offer, though.

At least not judging by the 108-page complaint reviewed by the FT -- in which it reports that Axel Springer, along with the country's federal association of digital publishers and a number of others argue the planned changes will damage their businesses while allowing Google's ads-based search business unaffected as it will collect to be able to collect vast amounts of user data.

Per the FT's report of the document, the companies argue they must be allowed to continue to ask users for consent to process their data for ad targeting "without Google capturing this decision"; as well as urging that "Google must respect the relationship between publishers and users without interfering".

In a statement responding to the report of the complaint, a Google spokesperson said:

"People want a more private, secure web and we've proposed ideas to help build it with new digital advertising tools to protect privacy and prevent covert tracking, while supporting a thriving ad-funded open web."

In further background remarks, the tech giant argued that web users' expectations and regulations are both changing so there's a need for adtech infrastructure to adapt.

It also pointed out that other browsers have already withdrawn support for tracking cookies. (Albeit, Google's market power here, via Chrome, is far more substantial than alternative browsers like Firefox and Safari.)

The tech giant also claimed its Privacy Sandbox proposal are being designed in the open -- in consultation with a cross-section of the web community, including publishers.

Although, here again, there's no doubt Google remains in the driving seat, directing and steering these proposals (and what 'consultation' there is and has been to date, certainly does not sum to co-design, let alone Google taking a more minor role in shaping the future).

Moreover, a perceived lack of transparency/openness in Google's approach has also led the company to dial up the commitments it has offered the U.K. competition regulator on Sandbox -- such as around testing and taking market feedback -- which suggests, contrary to Google's background claims, that a lack of openness is a particular bone of contention for advertisers and publishers (at least in the U.K. market).

In Germany, Google/Alphabet currently has two open antitrust investigations against it by the country's Federal Cartel Office (FCO): One focused on its News Showcase product; and another digging into its data terms.

Notably, earlier this month the German regular found Mountain View meets the threshold for ex ante regulatory interventions to be applicable -- which quickly led to an offer from Google to try to settle the News Showcase complaint. So it's interesting to speculate whether the FCO has received a copy of the German publishers complaint against Privacy Sandbox.

If so -- and if the FCO agrees there's a problem -- that would offer (very likely) the swiftest option for local behavioral relief, given Germany is ahead of other European countries (and the Commission) in updating its domestic competition rules with an eye on curbing tech giants' market power. (The U.K., for example, intends to bring in a "pro-competition" reform to tackle Big Tech's market power too, but has yet to legislate, meaning the CMA is limited to its existing regulatory toolbox.)

However a spokeswoman for the FCO declined to confirm whether/if the regulator has received a Privacy Sandbox complaint from German publishers -- saying only: "We don’t communicate about possible complaints we have received."

A Commission spokeswoman also declined to comment on the FT's report and any potential impacts the complaint could have on its own ongoing investigation of Google's adtech practices.

The Commission has hit Google with a series of enforcements under Vestager's tenure at the competition unit.

But it was not until last summer that Vestager finally turned her attention to Google's adtech practices -- saying then that the unit would 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 own use.

The terms of reference of the investigation do explicitly refer to Privacy Sandbox -- with the Commission saying it would look at the plan to replace third party ‘cookies’ on Chrome with a stack of alternatives ( including considering "the effects on online display advertising and online display advertising intermediation markets").

The EU probe also covers scrutiny of a Google plan to stop making the advertising identifier available to third parties on Android devices when a user opts out of personalised advertising to similarly assess the wider ad market effects, among other areas of investigation.

On this, the Commission spokeswomen told us: "As part of its in-depth investigation, the Commission is examining, among others, Google's announced plans to prohibit the placement of third party ‘cookies' on Chrome and replace them with the “Privacy Sandbox” set of tools, including the effects on online display advertising and online display advertising intermediation markets."

"This investigation is ongoing," she added.

The EU's own set of ex ante rules for tech giants -- aka, the Digital Markets Act -- is currently making its way through the bloc's co-legislative process. And MEPs recently voted to beef up restrictions on gatekeepers' ability to track Internet users for ad targeting. Although the full detail of the future pan-EU law has yet to be hammered out.

So, whether or not Google gets its way with Privacy Sandbox, it's clear adtech is facing substantial regional pressure to reform.

The outgoing U.K. information commissioner warned the industry last fall it's past time for a big reset, emphasizing the need to move away from current methods of online tracking and profiling, and bake in data protection and privacy from the start.

The German publishers' apparent focus on maintaining the ability to ask users for consent to track looks, well, interesting in light of long-standing GDPR complaints against current 'consent request' methods. (Also last November the ad industry body, the IAB Europe, warned it's expecting to be found in breach of the pan-EU regulation -- along with its industry standard Transparency and Consent Framework, which is used by scores of websites to gather consent for ad targeting.)

One thing is clear: There won't be a sticking plaster fix for systematic, high velocity trading of web users' personal data for ad targeting purposes -- a meaningful alternative will be required to pass muster under robust EU privacy laws.

Whether this alternative gets designed by Google -- or by the wider adtech and publishing industry engaging in good faith with privacy concerns -- is a whole other question. And, well, so far Google does rather look streaks ahead in this regard...

Update: Google has followed up the Financial Times' reporting today by going on the offensive in a mini tweet storm in which it accuses the newspaper specifically, and the publishing industry more generally, of failing to pay any mind to the privacy problems associated with current methods of tracking and profiling for ad targeting, arguing that "everyone needs to adapt" to a "more private and secure web".

"Our plans will not interfere with how publishers can use information from their readers or customers on their own sites. What people don't want is to be tracked across sites by a third party they don't know or can't see," the adtech giant goes on.

Google ends the thread with a reference to the regulatory commitments it offered the U.K.'s antitrust regulator last fall -- adding that it "welcome[s] feedback so we can find solutions that work for publishers and protect privacy".

So, er, touché.

In the U.K. the CMA and the Information Commissioner's Office (ICO) are jointly assessing Google's commitments in order that competition and data protection are considered in concert.

In a joint statement last May the two U.K. regulators said the would work together to overcome any perceived tensions between their objectives.

Also on privacy and competition, Germany's FCO has, in recent years, distinguished itself by bringing a pioneering case against Facebook's 'super-profiling' of users -- arguing the adtech giant's "exploitative abuse" of privacy, through the systematic combining of people's information across multiple services, is itself a competition concern. That case was referred to the EU's top court last year. A decision remains pending.