December 6, 2021
In June 2021, the CMA invited views on commitments offered by Google to address the CMA’s competition concerns in the context of its investigation under the Competition Act 1998 in relation to Google’s proposals to replace third party cookies and other functionalities with a range of changes to its Chrome browser known as the “Privacy Sandbox”. The CMA’s investigation followed complaints of anti-competitive behaviour and requests for the CMA to ensure that Google develop its proposals in a way that does not distort competition.
Following the consultation, the CMA identified various aspects in the commitments that needed strengthening or revising in order to address its competition concerns. Google offered modified commitments on 19 November 2021, which:
- impose obligations on Google regarding transparency and consultation with third parties by requiring that: (i) the CMA’s role (and the ongoing CMA process) be referenced in Google’s key public disclosures, including publication on a dedicated microsite of a process for engaging with third parties (i.e., publishers, advertisers and ad tech providers), and; (ii) Google report regularly to the CMA on how it has taken into consideration third-party views;
- put in place a more transparent process through which Google will develop and test the Privacy Sandbox proposals and extend the requirement that Google test and trial (with the involvement of the CMA) all Privacy Sandbox proposals that are amenable to quantitative testing, not just those intended as replacements for third party cookies (TPCs);
- add commitments to address concerns over Google removing additional functionality or information before TPCs are removed, i.e., Google will now also commit to not enforcing the Privacy Budget (a tool that reduces access to certain other information) before removing TPCs, and will only implement the GNATCATCHER proposal (that reduces access to IP addresses) after making reasonable efforts to support websites’ ability to combat fraud/spam;
- provide for a mechanism for the CMA to monitor Google’s adherence to any resolutions reached between the CMA and Google under the commitments;
- clarify the limits on data that Google is allowed to use for the purposes of targeting and measuring digital advertising, and confirm Google’s intent to use Privacy Sandbox tools in the future in the same way that third parties will be able to use them;
- improve its approach to addressing concerns over the potential for Google preferencing its own products/services, which includes providing greater certainty for third parties who are developing alternative technologies;
- improve the provisions on reporting and compliance, e.g., by providing for a CMA-approved monitoring trustee to be appointed; and
- provide for a longer duration of the commitments, i.e., six years from any decision by the CMA to accept commitments.
Overall, the CMA’s provisional view is that the modified commitments address its competition concerns and provide a robust basis for the CMA, ICO and third parties to influence the future development of the Privacy Sandbox proposals to ensure that the purpose of the commitments is achieved. However, the CMA has not reached a final view and is inviting all interested parties to submit observations and evidence in order to assist it in its final assessment. The deadline for comments is 5 pm on 17 December 2021. To access the CMA’s Notice and for details on how to respond to the consultation, click here. To read the CMA’s press release, click here.