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Week Recap 8

Christophe Carugati

13 Dec 2022

In this week's recap, Europe organized its first DMA technical workshop and published the draft of its first DMA implementing act, the US seeks to block Microsoft/Activision, an Australian Court dismissed Google's misleading data practice, and Europe investigates the telcos Ad Tech project.

DMA technical workshop and implementing act

The European competition division is starting to make its digital competition regulation a reality. The workshop on self-preferencing—the promotion of its own products/services over rivals—was interesting in two ways. First, the minor technical issue preventing online audiences from participating in the beginning for around 30 minutes showed that the Commission lost its Zoom skills acquired during the Covid-19 pandemic. We hope it will quickly develop more technical skills to deal with major technical issues, such as interoperability. Second, the disagreements between Google and its rivals illustrate how a participative regulatory approach will be, in practice, laborious and prone to regulatory capture from competitors who will seek an advantage. But, in fine, Google will decide as it has the burden to show compliance. Of course, rivals will argue Google’s behaviour is non-compliant. We can already prepare the popcorn for the first DMA European battle in 2024.

Meanwhile, the Commission also published the draft of its first implementing act related to procedural aspects of the designation of gatekeepers. It will probably raise many legal issues, but the good news is that you have until January 6, 2023, to publish your comments. Enjoy your holiday!

Microsoft/Activision blocked in the US

Call of duty: modern antitrust warfare” could be the title of the next Activision bestseller game available on Sony PlayStation and Microsoft Xbox. The story could be the following. In the XXI century, a young academic in the US—now head of the powerful US competition division—seeks to unwind or block major deals by big tech companies, including Facebook/InstagramFacebook/WhatsAppMeta/Within, and Microsoft/Activision. But its tactic is under attack by special commandos from the big tech who are determined to make the deals work against the new antitrust approach—a true modern antitrust warfare.

No Google misleading data practice in Australia

The Big Tech data practice is under the spotlight of several competition authorities worldwide. The competition and consumer division in Australia tried to pursue Google under consumer protection law. It alleged that Google used misleading terms and conditions to combine data from Google accounts with data from non-Google sites that used Google technology for advertising following the Google/DoubleClick merger. The division argued that Google’s terms did not give users informed consent, but the Court disagreed and dismissed the case. Still, it is an interesting case at the intersection of competition, consumer protection, and data protection laws.

Investigation of telcos Ad Tech project in Europe

The digital advertising industry is a multi-billion one, with Google and Meta as the market leader. Of course, big money attracts competition. This time from a consortium of European telco companies trying to build their own ad tech services by relying on "privacy-friendly" technology that is in compliance with the European data protection law. But privacy experts are doubtful of its compliance and even more of its supposed privacy friendliness. They are not alone. The European competition division is also investigating whether the project complies with competition law. The division will probably investigate any privacy issues as privacy, at the heart of the project, is a quality parameter of competition. So, it will examine whether the project would lead to a decrease in quality in terms of privacy protection. At least, we can hope it will do so.

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