The web was created as a free and open space, not controlled by a handful of powerful corporations, but accessible to all. Now, powerful players like Google, Apple and other big tech titans are threatening to enclose the open web. They are increasingly able to use their strategic positions of power – as providers of web browsers, operating systems and key pillars of the online advertising food chain – to turn an invaluable and open resource into a tidy revenue stream that they have disproportionate control over.
Apple & Google have taken steps to change browsers, to control access and become the web’s gatekeepers. Their control over browsers threatens to close down the Open Web as a channel to market for advertisers through a number of means. They are increasingly bundling functionality into the browser, whilst there is evidence of coordination on authentication and “Sign-in” to capture users and their data – binding access to the internet to one of a handful of powerful gatekeepers.
What’s more, they’ve actively worked to stigmatise smaller players and competitors, by jointly promoting the idea that “First Party = Good, Third Party = Bad” in regards to data collection and cookies. This distinction has no basis in technical or regulatory realities – yet is the foundation of key changes to the internet such as Google’s Privacy Sandbox and Apples App Tracking Transparency system. These large corporations have also sought to abuse the W3C standards body’s Technical Standards to create the “Splinternet” - fragmenting an open and interconnected system into walled gardens which gatekeepers have absolute control over.
These gatekeepers don’t just want to reshape the internet for their own gain – they want to be its de-facto regulators. Projects like Google’s Privacy Sandbox and Apple’s App Tracking Transparency system have seen online hegemons acting as regulators – dictating what other companies within their spheres of influence can and can’t do. Simply put – this isn’t their job, and we cannot expect them to govern the internet in the interests of anyone but themselves. Regulation is the job of the government – and is sorely needed to rein in big tech and protect the open web and the public who access and rely upon it every day.
What is Movement for an Open Web (MOW)?
MOW was established by a group of businesses that care deeply about the future of the World Wide Web. We exist to advocate for the core benefits of the open web – preserving business and economic freedoms online, plurality of the media and freedom of expression, and promote alternative channels for advertising.
MOW was formed to secure enforcement of the law by many who had submitted evidence to the 2019/2020 Competition and Markets Authority investigation into “Online Markets and Digital Advertising”. The CMA’s final report in 2020 identified many anti-competitive practices and issues and proposed legislative change and increased enforcement. The UK government responded positively to the CMA recommendation for legislative change and agreed, accepting the need for a dedicated Digital Markets Unit, which has now been created within the CMA. We understand that the new competition legislation has been drafted and is expected to be published during 2022.
We formed MOW as a not-for-profit company which benefits from formal complainant status. Our members benefit from corporate confidentiality and “whistle-blower” protections that exist in different antitrust jurisdictions world-wide, in order to protect those that help the authorities with their enquiries into breach of the law. Structuring the organisation in this way protects the members from individual visibility which might invite retaliation by the major platforms. Given the extent of their dominance of digital markets, all businesses are dependent on the major platforms and the risk of retaliation is significant. It has occurred in the past and MOW was formed with the benefit of experience of the way that such organisations operate.
MOW submitted the first formal complaint worldwide challenging the Google Privacy Sandbox, in November 2020, with the CMA opening proceedings in January 2021 and Google submitting undertaking a few months later in early 2021. In both cases they were examples of the fastest enforcement action anywhere.
The CMA’s 2022 Decision and Google’s formal Commitments are now legally binding, and subject to independent oversight through a Monitoring Trustee, and further CMA and ICO oversight. This is a precedent setting case, and one being considered and reviewed at G7 Coordination meetings by international antitrust authorities, from the EU commission to the Department of Justice and Australia’s ACCC.
The case is the leading example for all antitrust authorities on the issues that arise in relation to browsers and browser functionality. The law firm that co-founded MOW, Preiskel & Co LLP, won Competition Lawyers of the Year for their work on the case.
What do we do?
We are an active participant in a number of market studies, investigations and in the lobbying process around key legislation within tech antitrust. These include the UK Competition act, announced in May and due in draft form in Oct 2022 , as well as the CMA’s Mobile Ecosystems and Privacy Sandbox market studies.
We also monitor a range of regulatory and legal developments, from the US DOJ case against Google, the German Bundeskartellamt investigation into Google News Showcase, and the EU’s AdTech investigation.
Our approach takes three forms. Primarily, we make submissions to bodies like the CMA, EU and other market authorities. This leads into a number of regular actions, one of which is the publication of public-facing press releases to inform the market and affected parties, as well as the general public, of the situation around regulation, big tech and the open web.
We are also active in governance bodies like the World Wide Web Consortium (W3C), promoting both the views of our members and pushing for a more equitable, representative and effective standards body. Finally, through contacts within regulatory bodies and government, we maintain a consistent and cooperative relationship with key decision-makers in the regulatory process.
Our short term goals include ‘pressing pause’ and halting big tech’s advancement of projects like Google’s Privacy Sandbox, so that controls on web gatekeepers, online competition legislation and improved technical standards can be implemented. In the long run, our goal is to build a resilient and trust-based online marketplace, with a matured technical standards process, enduring decentralisation and a competitive market.
Our Successes
MOW filed multiple responses to the CMA’s Google’s Privacy Sandbox investigation, including criticisms of the framing of first and third party data, IP cloaking, and Web ID. As a result, the final terms between the CMA and Google agreed in February 2022 included:
- 3 party cookies & other major Google changes delayed until at least 2028.
- Conditional on CMA Oversight, as well as on competition law and privacy compliance – holding Google to robust standards.
MOW has also been involved in producing a number of firsts in the fight against Google & Apple.
- First CMA/ICO Joint Statement dismissing third & first party data distinction (June 2021).
- First Enforcement Decision (Feb 2022 CMA decision).
- First Use of Not for Profit & Member confidentiality vehicle.
Header image courtesy of Alina Grubnyak via Unsplash (Licensed for free use under the Unsplash licence)