The terms of service for Google’s proposed Privacy Sandbox (GPS) platform are likely to be ‘unfair and illegal’ according to new research commissioned by Movement for an Open Web (MOW).
According to due diligence undertaken by MOW’s legal counsel Prieskel & Co, the terms of service (ToS) Google force businesses to accept when using Privacy Sandbox GPS (GPS) are ‘onerous, discriminatory and one sided’.
There are many areas where the ToS fail to meet contractual expectations:
- Imbalance of obligations – Throughout the digital advertising value chain parties are generally bound by service level agreements that define acceptable limits of service provision. However, Google’s ToS place no service level obligations on Google, meaning that companies using the platform will be liable for any failures by Google with no matching commitment from Google. With Sandbox recently reporting a 16-hour outage and the fact that a significant percentage of the world’s digital advertising might one day be run through the platform, this is a serious issue for agencies, adtech businesses, and advertisers.
- Data controller agreement – In the latest CMA report on GPS, the UK’s ICO highlighted that the outputs of GPS received by business users are personal data. Under GDPR rules this requires a data controller arrangement to be put in place. The ToS under which Sandbox currently operates makes no allowance for a data processing agreement, thus breaching privacy law.
- Discriminatory imposition – Google has long been established to have a monopoly position in digital advertising and the vast majority of advertising businesses have little choice but to work with them. As such, businesses have little choice but to accept the ToS if they want to continue to operate. There has been no consultation about what type of terms would be relevant and needed, and no negotiation on these terms between the relevant parties, nor does it seem likely that there will be. Instead, Google has announced the terms unilaterally. Google can also unilaterally change or amend the terms as it sees fit. This is discriminatory under competition law.
Tim Cowen, Chair of the Antitrust practice at Prieskel & Co, said: “Our analysis suggests that the terms of service for Google’s Privacy Sandbox would be found to be unfair and illegal if contested in a court. They have been imposed at the whim of a monopolist on a market with little choice but to accept them and they impose significant obligations on the users with no corresponding liability on Google. Combined with the fact that they seem to ignore the basics of privacy law then its clear that Google needs to go back to the drawing board if they want to release GPS to the mass market.”
James Rosewell, Director of Movement for an Open Web said: “We have informed the Competition and Markets Authority (CMA) of the work and expect them to comment in their July 2024 report. To date Google have not bundled B2B features in their B2C web browser software. Without beefing up the terms of service Google’s Privacy Sandbox will merely steer advertisers and publishers into Google’s walled garden where robust B2B terms of service can be offered.”
About MOW
The Movement for an Open Web is an advocacy group fighting to protect the Internet from attempts by the Tech Platforms to enclose it in their walled gardens.
Companies such as Google and Apple are attempting to rewrite core, open and interoperable standards in areas such as advertising, payments and identity for their own advantage. They want to stop technical interoperability between businesses so that they can dominate the internet value chain. MOW exists to prevent them from achieving their aims.
MOW works with regulators, lawmakers and standards bodies to help create a fair and competitive digital market that is not dominated by the platforms. This is achieved by raising awareness of the issues, influencing legislation and regulation and ensuring that web standards are developed for all players and not just the biggest.
Founded in 2020, MOW has so far had a significant impact on the global debate in this area. It was the initial complainant in both the CMA’s investigation into Google’s GPS and in the European Commission’s Statement of Objections to Google’s dominance of the advertising technology industry.
The platforms have tried to hide their anti-competitive actions behind claims of consumer privacy. However, the route to greater privacy is through effective competition, not the imposition of flawed solutions by monopolists.