Archive – 2021-22

June 2022

Meta Mostly Loses Giphy Appeal in UK… So You’re Telling Me There’s a Chance!

Report from Reuters

In Brief – The UK Competition Appeals Tribunal (CAT), a specialist court that rules on the decisions of UK antitrust regulator the Competition and Markets Authority (CMA), has largely dismissed Facebook’s appeal of last year’s CMA order to unwind its acquisition of Gif platform Giphy, but left open a narrow avenue of continued appeal. The CMA ruled that Giphy, a New York-based startup, was a nascent digital advertising services provider that could emerge as a meaningful advertising competitor to Facebook, and also that Facebook could restrict access to Giphy’s inventory to undermine social media competitors such as Snapchat and Twitter. The CAT, which reviews matters of law and process, rejected most of Facebook’s appeals, but did find that the CMA erred by failing to inform Facebook that their investigation uncovered that Snapchat had themselves purchased a Gif platform, Gfycat. Both the CMA and Facebook claimed victory with the CAT ruling.

Context – So much coming together. First, despite widespread concerns over Big Tech acquisitions, there is no consensus emerging. While the CMA tries to globally unwind this small $315 million acquisition, Amazon’s $8.5 billion purchase of MGM and Microsoft’s $19 billion deal for Nuance cleared regulators. Microsoft’s $70 billion bid for Activision is multiple times larger. They have made a labor union deal to help with FTC labor concerns. FTC Commissioner Noah Phillips argues that activist antitrust regulators are more comfortable being aggressive with small deals and avoid the biggest fights. Then there’s the issue of more regulators reviewing more deals of foreign businesses and the resulting overlaps. Giphy only has operations in the US. The UK is unwinding the deal. A European court accepted it. US regulators did not intervene. Finally, in the midst of a steady diet of UK interventions in digital markets, their CMA Head says they are falling behind Europe on setting new digital rules while the government announces a “New Digital Strategy to make UK a global tech superpower” with increased investment and digital growth.

TikTok Announces Oracle Hosting Plan in US as Charges Swirl Alleging Chinese Access

Report from the Wall Street Journal

In Brief – Nearly two years after President Trump attempted to force TikTok to sell its US operations due to alleged security risks caused by potential Chinese Government access to voluminous data on US users, TikTok has announced an agreement with Oracle to route and store data related to US users on Oracle servers. Rather than an immediate complete switch-over, TikTok indicated that it would still back up US user data on TikTok servers in the US and Singapore, but that may be phased out. In addition, the digital giant claims to have implemented a range of access controls to provide further security and would be developing additional protocols with Oracle regarding who can access what US user data, with Oracle auditing compliance. The TikTok announcement coincided with a damning report from Buzzfeed News, based on a leak of TikTok documents and audio recordings, claiming that TikTok staff in China has had significant access to US user data despite repeated denials by company officials in recent years.

Context – The Trump Administration’s aggressive actions against WeChat and TikTok accelerated the digital divide between the US and China. However, the Biden Administration slowed things way down. They revoked Trump’s WeChat and TikTok orders, stepped away from the resulting legal battles, and embarked on a bureaucratic effort to create a still not-yet-finalized process to address digital services, apps and equipment from countries that raise national security concerns, including China. The implications of Chinese companies having access to user data, because it can be forcibly accessed by Chinese authorities, is also a concern outside the US, such as in Japan. The aggressive Chinese Government crackdown on its own digital giants has pressed home how it can clearly impose its will on even the very largest companies, which legally includes the right to access all their user data. As the Committee on Foreign Investment in the United States (CFIUS) continues to discuss Chinese data access with TikTok officials, the recent leaks won’t help.

Another California Amazon Liability Decision Implicates Online Marketplace Liability

Report from Fox Business

In Brief – The California Supreme Court has rejected a request from Amazon to hear its appeal of a decision by the California Court of Appeals to overturn a lower court ruling that had exempted the ecommerce giant from liability under California Prop. 65 that requires the labeling of products that include substances that are known to cause cancer. The case involves the sale of skin-whitening creams, a controversial product that can include mercury. The trial court dismissed the charges against Amazon for a range of reasons, including that the cream sellers were at fault for concealing the presence of mercury and Amazon was immune based on Sec. 230 of the CDA. The appellate court overturned, including arguing that the more stringent “actual knowledge” standard applied to retailers under Prop. 65 was not established until 2016 and did not apply when the products in question were being sold, and that Sec. 230 did not apply because Amazon had an independent notification duty under Prop. 65 regardless of a seller’s online posting when it had “constructive knowledge” a product contained mercury.

Context – Efforts to impose retailer-like liability on ecommerce marketplaces that enable small business retailers reach customers anywhere on the Internet, are as old as the Internet itself. Most giant retailers and luxury brands have hated the Internet the way newspapers and music companies have. While Internet-related liability laws in the US and Europe have largely protected true remote marketplaces from unwarranted liability, Amazon’s opaque business model where it operates as a retailer, marketplace and, most importantly, handles goods from nominal third parties in its giant logistics network, is roiling the legal and legislative environment. This ruling, like the earlier Loomis decision, is a negative for true marketplace businesses. However, in the Bolger and Brodie cases, other courts recognize that when Amazon handles goods on its shelves it is like a retailer not a marketplace. Finally, new regulatory burdens under the EU’s Digital Services Act or a SHOP SAFE Act, if passed by Congress, could prove quite negative for independent small businesses using marketplaces.

Spotify Creates Safety Advisory Council to Help with Platform Speech Challenges

Report from Reuters

In Brief – Spotify has announced the creation of a Safety Advisory Council, a group of outside experts to advise the company on its content moderation policies and practices to deal with challenges such as hate speech, disinformation, extremism and online abuse. The panel of 18 (see bios here), mostly representing elite think tanks, online safety advocacy organization and top universities in the United States and Europe, will be regularly consulted by Spotify on policy issues it faces, or can expect to face, as the company expands beyond its traditional online music streaming service to formats more likely to involve controversial topics, speakers and language. The company faced significant criticism from progressive circles, including from some music artists, for its role hosting the highly popular if sometimes controversial podcast by Joe Rogan, who was accused of spreading COVID and vaccine skepticism among other issues.

Context – Spotify’s council is reminiscent of TikTok’s US Content Advisory Council created in March 2020 and the European counterpart TikTok established a year later. The social media mega-phenom announced them when it was facing scrutiny on a range of issues including censorship, data security and its impact on the health and wellbeing of young users. Facebook’s independent Oversight Board of eminent persons drawn from across the world, established as a kind of Facebook Supreme Court to adjudicate content moderation appeals from across its platforms and also advise the company on policy changes, is still the most aggressive company effort to lean on experts to help balance addressing objectionable speech with clear censorship concerns. But governments, and not just authoritarian regimes, are increasingly stepping in directly to police problematic online content. The EU’s Digital Services Act and UK Online Safety Bill are two big examples. How will experts and panels like these fit in? Advising regulators? Becoming regulators? Helping giant platforms deal with regulators by sharing credibility? We’ll see as the new regulatory era unfolds.

New EU Digital Platform Code on Disinformation Points to Coming DSA Standards

Report from the Financial Times

In Brief – The largest social media platforms are coming together with European civil society groups and signing onto an updated EU Code of Practice on Disinformation that contains commitments related to handling objectionable content, digital advertising, “deepfakes”, transparency and access to data. The new code, which follows the original disinformation code of commitments from 2018, aligns closely with the EU’s Digital Services Act (DSA), comprehensive legislation that will put into law standards and practices on many of the same topics. As the updated code was being negotiated in parallel with the DSA being hashed out in legislative negotiations, the digital platforms were able to help flesh out the conduct and practices that will likely soon be backed up by regulation and enforcement. Online platforms will have to counter “harmful disinformation” by developing tools and partnerships with fact-checkers that may include taking down propaganda, but also include “indicators of trustworthiness” on independently verified information on certain sensitive issues, as well as regularly disclose how they are removing, blocking or curbing harmful content in advertising and in the promotion of content.

Context – The whole Internet is the “Wild West” mantra from many EU leaders is tired and misinformed. There would not be so much frustration expressed by the targets of platform content moderation decisions if a lot was not happening (and complaints also come from Europe). Establishing and enforcing a broad set of new rules on so many digital platforms is certain to dramatically impact the digital ecosystem. Given that “misinformation” is often inherently political, the EU’s grand regulatory experiment, applauded by Democratic leaders in the US who call for social media companies to crack down on content that is often partisan in nature, will be interesting to watch. Compare their vision to the many Republicans applauding Elon Musk’s efforts to buy Twitter and change its moderation culture.

Amazon Gig Drivers in Japan Create Union and Ask for Better Working Conditions

Report from the Kyodo News

In Brief – Ten Gig-work package delivery drivers who deliver for Amazon in Yokosuka, Japan, have created a union and delivered a set of requests to Amazon to improve their working conditions. The drivers are not Amazon employees but instead work as freelancers. The union members argue that they meet the criteria of workers under Japan’s Labor Standards Act, claiming that Amazon sends instructions directly to them and manages their working hours through a smartphone app. The driver who initiated the union organizing effort claims to have been inspired to act by the increasingly long and difficult shifts that he says the Amazon delivery app was directing, which resulted in him becoming over-tired and leading to a small traffic accident. An Amazon official said the company is scrutinizing the content of the drivers’ requests.

Context – Despite not being top of mind like Uber, Instacart and DoorDash, Amazon has been one of the largest Gig Work businesses for years. The most relevant issue when evaluating whether a platform supports true “freelancers” is the level of control exerted over the worker. Two Gig platforms are central to Amazon’s delivery services. One is the Delivery Service Partner (DSP) fleet of small businesses who buy delivery vans, often through Amazon credit terms, use Gig drivers to drive them, but have the driver performance tightly guided by Amazon directly. The second, called Flex, is Amazon’s own Uber-style delivery driver app where Gig drivers sign up directly and supply their own vehicles. Both face criticism globally for worker misclassification, lax safety and aggressive monitoring by Amazon. In the UK, the law firm that won the court battle that forced Uber to reclassify drivers as company workers is now targeting Amazon. In the EU, the European Commission has proposed a directive to regulate Digital Labor Platforms and address issues such as “algorithmic control” and “bogus self-employment” that are raised by the Japanese drivers.

German Competition Authority Opens Investigation of Apple Ad Tracking Changes

Report from Politico

In Brief – The Bundeskartellamt, Germany’s national competition authority, has announced that it will investigate the changes that Apple rolled out in its iPhone operating system last year to limit the ability of third-party apps to track users for the purpose of targeting ads. While Apple heralded the change to require all third-party apps to get direct opt-in permission from users to access their IDFA (ID For Advertising) as promoting user privacy, many developers whose apps rely on revenue from advertising, as well as competitors in the digital advertising business, have complained that Apple’s changes harm competition and unfairly benefit Apple’s own advertising business. The German regulator has expressed similar concerns. In addition, ad market results appear to be bearing out some of the claims, with major advertising platforms Facebook and Snap alleging negative impact on their ad revenues while Apple tripled their digital advertising services market share last year.

Context – “Targeted advertising” is one of the most contentious topics in digital policy. On one hand, many privacy advocates want to get rid of it (less effective, more expensive advertising is apparently better for people), while “privacy” changes proposed by giant platforms like Apple and Google threaten smaller industry participants who sense anticompetitive intent. Almost forgotten is the fact that highly targeted advertising clearly benefits small, specialized businesses finding customers online. The German investigation of Apple’s IDFA change follows similar action in Poland. Google, a far bigger digital ad services business is similarly proposing changes to how third-party cookies operate in the Chrome browser and on Android, a project it calls the “privacy sandbox”. Facing widespread negative feedback from other ad industry participants, Google has reached agreement with the UK CMA to have the regulator certify that technical changes do not preference Google or unfairly harm competitors.

Google May Open Ad Serving on YouTube to Competitors to Resolve EU Investigation 

Report from CNBC

In Brief – Google is reported to be offering, for the first time, to open the serving of ads on the massive YouTube video platform to competitive ad serving businesses as part of its negotiations with the European Competition Authority (ECA) to resolve its investigation of Google’s massive display advertising business. The ECA probe, initiated last June, highlighted the fact that Google is a major business in every part of the digital advertising supply chain, raising concerns in particular about how it uses access to YouTube as an advertising platform, where only Google ad services can place ads, to pull advertisers into its services. The ECA also raised concerns with discriminatory access to a range of user data valuable to advertisers, with Google withholding for itself data to disadvantage competitors. Opening up the YouTube platform to other ad-serving intermediaries could resolve a major concern of the regulators, although any specific Google offer would be vetted with industry participants to confirm its value, while addressing the full range of regulator concerns would likely require other Google commitments as well.

Context – Digital advertising is how Google makes most of its money, and Google is the largest business in many parts of the digital ad services market. So, it’s not surprising that competition regulators are targeting those highly complex and technical services. Along with the ECA investigation, the interplay between various Google ad services and platforms are the subject of a major US State AG antitrust suit and a recently announced investigation by the UK competition authority. Last year, Google resolved an advertising-based antitrust investigation in France with changes offered in that market. It is conceivable that they could be added to the new YouTube offer as well. At the same time, antitrust cases take a long time, which is spurring policymakers to propose regulation to address self-preferencing, discriminatory and exclusionary conduct by the largest digital platforms, including the EU’s Digital Markets Act and legislation in the US Senate that would effectively require Google to sell off parts of its ad business.

UK CMA Opens Three More Investigations of the Mobile Operating System Ecosystem

Report from the Wall Street Journal

In Brief – The UK Competition and Markets Authority (CMA), the country’s antitrust regulator, has announced that is it beginning two market investigations targeting the roles of Apple and Google in the mobile ecosystem. One will investigate how the two companies control web browsers for mobile devices, while the second will investigate complaints that Apple restricts cloud gaming on its devices. Market investigations such as these can lead to binding orders to change practices, but not fines. The two new market investigations follow on from a lengthy preliminary report released by the CMA that claims Apple and Google have an effective mobile-device duopoly that undermines competition. The CMA also initiated a traditional competition investigation into Google’s in-app payments policies through its dominant Play Store.

Context – These most recent undertakings by the CMA add to a steady diet of UK Government activism in digital markets. The most aggressive intervention is the massive Online Safety Bill to regulate how all digital platforms manage all manner of objectionable user content, as well as proposing age verification for porn sites and a comprehensive regime to dissuade, but not ban, online anonymity. On other fronts, the CMA is trying to force Meta to sell-off gif marketplace startup Giphy, investigating Google’s digital adtech business and, of course, investigating Apple’s in-app payments policies as well. The CMA is also pushing to be in the vanguard of digital regulatory co-pilots, working with Google to assure the adtech industry that its “privacy sandbox” changes to third-party cookies in Android and Chrome are not anticompetitive. The UK government is also a leader in the effort to deter strong encryption, while the UK courts have ruled Uber drivers are company workers and may extend the decision to other gig work platforms. But have no fear, the UK Government has announced a “New Digital Strategy to make UK a global tech superpower” that aims to increase investment and growth in digital businesses.

Microsoft Acquisition Campaign Yields Activision-Blizzard Labor Accord with the CWA

Report from the New York Times

In Brief – Amid their effort to win regulatory sign-off on their proposed $68.7 billion acquisition of giant game developer Activision-Blizzard, Microsoft and the Communications Workers of America (CWA) have reached a “labor neutrality agreement” that will apply to the full Activision Blizzard business 60 days after Microsoft’s acquisition closes. Activision has nearly 10,000 employees across 11 gaming studios. Raven Software, one of its smaller studios, was recently the subject of a high-profile organizing effort with 28 game testers, who identify bugs in games, voting to create a new union after a six-month standoff with Raven and Activision management. The resulting “Game Workers Alliance” was established under the auspices of the CWA. Microsoft is agreeing that employees across Activision should be able to easily communicate with other employees and union representatives about organizing, have a streamlined process for choosing to join a union that will dispense with the contentious NLRB voting process, and keep their decision private if they wish. Finally, the agreement states that if the CWA and Microsoft disagree, they will work together to reach consensus and then turn to an arbitrator. As part of the announcement, the CWA expressed its support for the Microsoft acquisition.

Context – Despite much anticipation that the Biden Administration’s antitrust team would take a very aggressive line on acquisitions by tech giants, that hasn’t yet materialized. And despite attention focused on Facebook’s past acquisitions of Instagram and WhatsApp, Google’s of YouTube and DoubleClick, or Amazon’s recent $8.5 billion purchase of MGM, Microsoft is party to the biggest deals. It’s $26.2 billion deal for LinkedIn is still the largest among the big five digital giants, its $19 billion deal for Nuance recently cleared regulators, and the Activision deal is multiple times larger. It’s clear that Microsoft, already unique in its willingness to align with pro-regulation advocates, sees championing organized labor as a tool to win over progressive competition regulators.

Apple Reaches Agreement with Dutch Competition Regulator on Dating App Payments

Report from Bloomberg

In Brief – Apple has reached agreement with the Netherlands national competition authority (ACM) to implement an acceptable compliance plan to allow dating apps distributed to Dutch iPhone users to use non-Apple payments services. The deal ends a standoff that began last August when the regulator ruled that Apple’s payments rules were an abuse of a dominant position. Apple was fined 5 million euros per week beginning in late January despite offering a handful of compliance plans, with total fines reaching 50 million euros. The Apple plan now allows three payments options: the Apple payments service, a third-party in-app payments service, or an in-app direct link to an external website for payments. An app developer can offer users any combination of the three, which was a requirement of the ACM. Apple continues to challenge the initial ACM decision and argues that the new payments alternatives threaten user safety and security. Apple will also require commissions to be paid on all purchases regardless of the payments used, providing a 3% discount for the various non-Apple alternatives to account for payments fees, which will require a new weekly reporting, accounting and auditing regime. The 3% discount will apply to the top fee of 30% and the lower 15% fee for longer-term subscriptions.

Context – The front lines in the battle pitting big app developers against Apple and Google over payments and fees have been in South Korea, the Netherlands and US Federal Court in California. In South Korea, Google (and Apple) have offered to allow payments alternatives but still collect fees. Led by Google, the proposed discount is 4 percent. Apple has finally resolved, at least for now, the Dutch challenge, with a 3% discount (the ACM is now investigating Google). And in US Federal Court, Apple largely won the opening decision but appeals are underway. The similar Google trial is set for next spring. Big app developers don’t care about payments alternatives, they want much lower fees to simply be mandated by governments.

Tech Opponents are Concerned China Competition Bill will Protect Big Tech from EU Laws

Report from the Washington Post

In Brief – Speaker of the House Nancy Pelosi (D-CA), progressive leaders in Congress, and advocacy groups championing policies to restrain the large digital platforms, are raising objections to the Senate-passed version of legislation to bolster US competitiveness against China, alleging that the bill could force US trade officials to challenge digital policies enacted by countries such as the European Union intending to restrain digital monopolies and address objectionable content on social media platforms. With China as the bill’s focus, the Senate bill requires the US Trade Representative to address online censorship, which broadly covers a range of discriminatory regulatory and policy practices impacting digital platforms, but the application is global, not just China. In recent years, many democracies, in particular the European Union, have embraced increasingly regulatory digital policy regimes on privacy, digital gatekeepers, and pressing digital platforms to police hate speech, disinformation and other online content.

Context – This isn’t the first time trade language spilled into Internet policy fights. Speaker Pelosi raised similar concerns in 2019 over the bill enacting the US-Mexico-Canada Agreement (USMCA), arguing that it pushed Canada and Mexico to adopt online content liability laws like Sec. 230 of the CDA, which Pelosi called for basically scrapping in the US. Conservative Senators like Ted Cruz (R-TX) and Josh Hawley (R-MO) made similar objections, although their concerns with Sec. 230 and content moderation were, and are, the opposite of Pelosi’s. That trade bill was enacted without abandoning Sec. 230-style liability language, but it hasn’t had real effect because the agreement doesn’t force the Administration’s hand. Today, progressive champions of aggressive regulation of digital platforms strongly support the EU’s recently passed Digital Markets Act and Digital Services Act and hope they help drive similar reforms in the US. Defending those EU digital policy gains from US encroachment is increasingly a priority of progressives frustrated by a lack of congressional progress.

Parents Sue Meta Claiming Addictive Platforms Severely Harmed Their Children

Report from Bloomberg

In Brief – Meta Platforms is facing legal complaints from plaintiffs in eight states alleging that excessive exposure to its digital platforms, including Facebook and Instagram, has led to a range of harms to teen users, including attempted or actual suicides, eating disorders and sleeplessness. The complaints were filed in federal courts in Colorado, Delaware, Florida, Georgia, Illinois, Missouri, Tennessee and Texas.

Context – You can draw a line from the recently filed lawsuits back to the documents Facebook Whistleblower Frances Haugen took from Facebook and released to the world in a media and lobbying campaign. The charge that resonated most widely was that the company knew that its platforms were harmful to children, with particular focus on the claim that Instagram had found that nearly a third of the teen girls in one study indicated that the platform contributed to negative body image. Facebook and Instagram officials have argued in detail that those research findings were greatly misrepresented and defended the company’s efforts to identify and address issues faced by young users. More generally, the conventional wisdom that social media usage (like video games before them) were obviously harmful to young people largely doesn’t hold up under analytical scrutiny, including in a major study published last year based on massive UK data. Lawsuits claiming that Facebook designed its platforms to be addictive and negligently ignoring dangers are an attempt to circumvent the platform’s immunity under Sec. 230 from responsibility related to the third-party content the young people viewed, even if harmful. The argument is that company “algorithms” are distinct from user content and company content moderation decisions. It falls in line with a May 2021 decision by the Federal Ninth Circuit Court of Appeals that Sec. 230 does not protect Snap from facing a claim of negligent product design from the parents of teenagers who died in a fatal high-speed car accident that occurred while Snapchat’s “Speed Filter” tool was being used.

FTC Chair Khan Marks One-Year Anniversary with Media Tour Promising Big Year 2

Report from the Washington Post

In Brief – Federal Trade Commission chair Lina Khan engaged in a whirlwind series of media interviews to discuss the challenges of the past year and priorities going forward, cognizant of partisan criticism from the right that her progressive views on antitrust and regulation threatens innovation and settled law, while there is also creeping progressive disappointment that the Khan-led FTC has not delivered on top reform initiatives. (Also see NY TimesFinancial TimesAxiosThe HillReuters and the Wall Street Journal) Khan, who came to prominence as a law student authoring a landmark progressive antitrust critique of Amazon, is the youngest ever FTC chair. Her ability to act when opposed by the two Republican commissioners (most of her stated priorities) was hamstrung from October to May by the departure of Commissioner Rohit Chopra and long-delayed Senate approval of new Commissioner Alvaro Bedoya. Although she largely passes off strident criticism from the Republican commissioners, business groups and congressional GOP, she claims to be serious about shoring up FTC staff morale.

Context – A top theme in the Khan reviews, and in the broader movement to pare back Big Tech, is criticism of acquisitions. However, even with the Biden Administration naming high profile antitrust reformers like Khan and Jonathan Kanter to top spots, little concrete action has ensued. The highest profile Big Tech deal of 2020 was Google’s $2.1 billion bid for a stumbling FitBit. It was approved despite opposition from consumer and privacy advocates. Under the new regime even bigger deals are happening. Microsoft’s huge $19.7 billion deal for health care AI firm Nuance was cleared, Amazon’s $8.5 billion purchase of MGM was not challenged by the EU or FTC, Google has announced a $5.4 bid for cybersecurity firm Mandiant and the big kahuna is Microsoft’s $70 billion bid for Activision-Blizzard. Republican Commissioner Noah Phillips is concerned antitrust activists are unwilling to make tough decisions on the biggest deals and may reserve their regulatory enthusiasm for smaller, easier to challenge companies.

Google to Pay Defamation Damages for Mean Videos Targeting Australian Politician

Report from the Wall Street Journal

In Brief – A Federal Court of Australia judge has found Google to be liable for defamatory videos posted on its YouTube platform that were harshly critical of John Barilaro, a former elected official in New South Wales, and ordered the company to pay 715,000 Australian dollars in compensation. Barilaro, who was attacked in numerous videos by Jordan Shanks, an Australian content creator, challenged Google on two videos that generated over 800,000 views and included unverified charges of misconduct and used racist names referring to his Italian heritage. Barilaro had asked Google to take down the videos, claiming that they violated YouTube’s Terms of Use, but Google neither took them down nor explained their decision. The court noted that Google did not play a passive role, having chosen to leave the videos up, which the judge determined did violate Google policies, and benefited through advertising revenue associated with the views. After the decision, Shanks claimed Barilaro settled with him for a relatively small sum of 70,000 AU dollars to keep him from testifying during the Google trial on the truthfulness of the charges in his videos, winning a big payday from Google while keeping the content from being tested in court.

Context – The application of Australia’s in flux defamation laws to social media and Internet search is increasingly breaking new ground in Australia. Last year, its High Court ruled that news media companies that post stories on Facebook are liable for defamatory comments left by users in a comments section in the same manner as if they published traditional Letters to the Editor. That decision, which has led a number of sites to shut down user comment boards, also led former Prime Minister Scott Morrison, a vocal Big Tech critic, to propose national legislation imposing defamation liability on social media sites for comments from anonymous “online trolls” if the platform refused to turn the user’s identity over to a court. That social media anonymity bill failed to clear the AU parliament before the May election that saw Morrison’s defeat.

As Musk Raises Bot Concerns, Texas AG Paxton Goes After Twitter (Again)

Report from Bloomberg

In Brief – Texas Attorney General Ken Paxton (R) has opened an investigation of Twitter, claiming that the social media platform may be violating the Texas Deceptive Trade Practices Act by deceiving Texas consumers and businesses regarding the number of Twitter accounts are “bots” rather than genuine users and delivering a CID calling for documents backing up company user claims. The AG’s announcement came on the same day that Elon Musk threatened to pull out of his $44 billion acquisition deal based on allegations that the company was not providing him with all the information he says is necessary to understand the prevalence of spam, bots and fake accounts on the platform.

Context – Texas and Florida have emerged as ground zero in the conservative campaign to confront the largest social media platforms over allegations of ideological content moderation practices. Both have enacted state laws to tightly regulate content moderation, and both have been blocked by federal judges over First Amendment concerns, although the Texas law, defended by Paxton, was the subject of a 5-4 Supreme Court decision that points to further high court action. Just a year ago, Paxton challenged Twitter with a CID based on the same law. The subject was content moderation, and a federal court dismissed Twitter’s challenge claiming that absent an effort by the AG to enforce the CID, which has not happened, the case was premature. Musk’s bid for Twitter, with his regular calls for “free speech” and less aggressive content moderation, has worried progressive and offered Republicans a “market” answer to their concerns. Back in April, Florida Gov. DeSantis (R) jumped into the public negotiations between Musk and the Twitter Board threatening Twitter with legal action by his state pension fund over use of a takeover “poison pill”. If the fight over bots blows up the Musk acquisition, it’s hard to see how that serves conservative interests, but most speculate that the Musk goal is to renegotiate the price down.

Tech Mega Giants Throwing Lobbying Resources at Democrats to Stop Tech Antitrust Bills

Report from the Washington Post

In Brief – The digital giants in the crosshairs of the unprecedented antitrust-inspired digital regulation moving through Congress are engaged a multi-million dollar lobbying campaign to run the clock out and block the legislation in the final months of the 117th Congress. The pair of bills passed by the Senate Judiciary Committee, one that prohibits the giants from preferencing their own products and services on their leading platforms, and a second that would regulate the Apple and Google app stores, have emerged as headline threats. The unusual bipartisan coalition backing the bills is led by progressive Democrats who support major antitrust reform across the board, and conservative Republicans who believe weakening the digital giants is the way to stop discrimination of conservative viewpoints. A major component of the tech company lobbying campaign is focused on undecided Democrats, especially more moderate Senators, those in challenging re-election campaigns, and the two Californians.

Context – Whether the Big Tech self-preferencing bill is enacted is the biggest issue for the rest of 2022. While the current set of lobbying stories are focused on Democratic holdouts, whether Republicans will “give” a Democrat-controlled Congress and President Biden a late high-profile win, as well as grant the FTC new authority when it is the center of major partisan controversy, are also big questions. The most ridiculous company claim comes from Amazon who repeatedly says that if the self-preferencing bill passes they would need to drop third-party sellers out of their marketplace. The truth is that the third-party sellers, when using FBA, are far more profitable to Amazon than its own retail business. They would sooner spin off Amazon’s traditional retail operation. The huge risk to Amazon is actually that preferencing FBA, the true lynchpin of their business, would be at risk. Amazon’s effort to create a third-party seller lobbing effort based on the claim is reportedly falling short with many sellers informing Amazon that they support the bill.

Expedia Reaches Agreement with JFTC Wrapping Up First Phase of OTA Price Parity Effort

Report from The Mainichi

In Brief – The Japan Fair Trade Commission (JFTC), the country’s competition policy regulator, has reached agreement with Expedia addressing JFTC objections that the hotel booking website improperly forced hotels to keep prices on Expedia as low as their prices on other online booking platforms. The JFTC believes that price parity policies constitute “trading on restrictive terms” and is banned by the country’s anti-monopoly law when the business has a large market share. The agreement by Expedia to stop prohibiting lower price offerings on competing Online Travel Agency (OTA) sites follows similar agreements with Rakuten Travel and, wrapping up the initial phase an investigation begun by the JFTC in 2019.

Context – The practice of not allowing suppliers to offer lower prices on alternative venues is often referred to as a “price parity”, “MFN” or “no-price competition” clause. Some argue that those policies can drive up consumer prices when the offending businesses are dominant because small sellers won’t pass lower fees on smaller competing platforms along to consumers through lower prices for fear of losing sales on the large platform. The Online Travel Agency (OTA) industry, with platforms requiring hotels offer the same room rates on their platform as they do on their own hotel website or other OTA platforms, has been a particular target of regulatory concern, with the JFTC regulators engaging along with those in EuropeKorea and India. The issue of online price parity has recently been heating up in the US, with some federal courts willing to allow complaints that MFN policies from dominant platforms drive up consumer prices across markets to be tested in trials. A federal consumer class action suit targeting Amazon’s policies punishing third-party sellers for offering lower prices on other platforms is moving forward in Washington State while a federal consumer class action targeting the largest restaurant delivery apps is moving forward in New York.

Google In-App Payments Policy Raises App Fees and Volume of Complaints in Korea

Report from the Yonhap News Agency

In Brief – As Google fully implements its long-planned in-app payments policy, a wide range of apps in South Korea are hiking the cost of in-app tokens and purchases to account for the fact that Google will now collect fees on all in-app purchases of digital content and services. Google’s Android mobile operating system holds a 72% market share in South Korea, home to leading Android phone manufacturers Samsung and LG. Prior to the new Google in-app payments policy, the digital giant only enforced its payments policies, and therefore only collected its fees, on mobile phone gaming apps. Now apps for music and video streaming, webtoons and books, all popular in South Korea, are required to use Google payments, or a Google-approved alternative payments provider, for in-app purchases. All the approved payments providers collect Google’s fees. Starting on June 1, Google says it will remove non-compliant apps from the Google Play Store, a policy that app developers and the Korean Communications Commission have objected to.

Context – South Korea has been a hotspot in the battles pitting Google and Apple against app developers over payments and fees. Last year, South Korea enacted legislation mandating that app stores allow apps to use alternatives to their in-house payments service. Google, who has defended their right to collect fees to pay for developing the Android ecosystem, announced a compliance plan to allow payments alternatives that cut fees 4% from the normal 15% or 30% fee level, but pushed back on developer efforts to skip out on fees entirely. A similar dynamic is underway in the Netherlands with Apple and dating apps. In the US, Google has struck temporary deals with Bandcamp and Match to defer fee collection pending a decision in Epic Games’ federal antitrust lawsuit against Google, with the app developers putting funds into escrow in the meantime. While app developers and government supporters talk about choice in payments, the real question is how long until a government just tries to directly regulate app store fees and simply sets prices.

Swiss High Court is the Latest in Europe to Rule that Uber Employs Drivers

Report from Reuters

In Brief – Switzerland’s top court has sided with the Geneva cantonal court that ruled in 2019 that Uber is an employer responsible for a range of employee benefits for the drivers that use its platform. A Zurich insurance court released a similar ruling in January of this year, holding the company responsible for social insurance contributions for drivers dating back to 2014.

Context – The court rulings in Switzerland point to increasing divergence on Gig work regulation between the US and Europe, at least for ridesharing and food delivery drivers. European courts continue to support classifying platform-enabled drivers as employees. Uber must bring on drivers in the UK as workers, although in a manner somewhat different from full employees, while Spain and Portugal enacted Gig driver and food delivery worker laws last year. The big kahuna is the European Commission’s massive legislative initiative on digital labor platforms which includes a Europe-wide change on worker classification for platforms that strictly control the performance of platform workers, going well beyond just driver platforms, as well sections regulating “algorithmic” management intended to apply to all labor platforms, including for truly independent contractors. On the other hand, reclassifying platform workers as employees has been stymied in the US since voters in deep-blue California passed Prop. 22 in November 2020 exempting Gig drivers from the state’s law classifying many independent contractors as company employees. Organized labor’s federal legislative priorities are likewise stalled in Congress, although the Biden Department of Labor did overturn some Trump-era independent contractor guidance offering a little consolation. The State of Washington and city of Seattle have both advanced middle-ground initiatives on platform drivers that maintains their independent contractor status and inherent flexibility while mandating improved pay and some employee-like benefits. Finally, a big Prop. 22-style ballot initiative showdown is likely in Massachusetts this November.

Federal Judge in Apple’s Epic Trial Says They Will Face App Store Monopoly Suit

Report from Reuters

In Brief – The Federal judge who presided over the landmark antitrust trial pitting Epic Games against Apple has ruled that the founder of Cydia, a now defunct company offering an early iOS app store, can sue Apple for anticompetitive conduct taken to monopolize the iOS app distribution market. Cydia was once a popular marketplace offering iOS apps and services that skirted Apple’s iPhone rules and was used by consumers who would “jailbreak” their Apple devices to permit sideloading apps Apple blocked, meaning download them from outside the Apple App Store. In the antitrust complaint, Cydia’s founder alleges that Apple made a series of technology updates between 2018 and 2021 that were “overt” acts to harm iOS app distributors such as Cydia, resulting in the company’s demise. District Court Judge Yvonne Gonzalez Rogers dismissed the initial antitrust complaint for falling outside the four-year statute of limitations but has ruled that the amended complaint may proceed. Gonzalez Rogers has given Apple three weeks to amend their response.

Context – Gonzalez Rogers oversaw and delivered rulings in the biggest app ecosystem antitrust trial in the United States, last year’s Epic Games v Apple battle (now under appeal). Her 185-page ruling, delivered last September, rejected Epic’s antitrust complaint, including for failing to prove that Apple was a monopolist. However, she used language in post-trial rulings that indicates she is not a fan of Apple’s business practices, accusing them of “incipient antitrust conduct including supercompetitive commission rates resulting in extraordinarily high operating margins which have not been correlated to the value of its intellectual property.” Yes, she ruled against Epic because federal law was not with them, but it seems ideologically she was. Epic Games was not the first antitrust plaintiff to fail in having Apple deemed an illegal monopolist. Messaging and email developer Blix saw its suit dismissed in US District Court last July, including for failing to offer direct or indirect evidence of Apple’s monopoly power.

Meta’s Giant Dutch Data Center Plan Exposes Divisions in Drive for EU Digital Infrastructure 

Report from Washington Post

In Brief – Facebook, which has been at the heart of European “cross border data flows” legal battles, is proposing to build a massive data center in the Netherlands on reclaimed land that is rich in wind-powered electrical generation capabilities. The plan is to move their European user data processing to Europe in a data center that is completely powered by clean energy. However, local opposition is emerging from farmers (the land reclaimed from the sea is also great for agriculture), anti-development activists, and even environmentalists who a concerned that too much of the country’s clean electricity will be used to power data centers rather than powering homes and local businesses. Advocates for the project argue that Europeans can’t both live highly digital lives and not accept how the digital services are powered.

Context – The desire to grow the European data services infrastructure, including data centers and cloud services, has been a goal of European policymakers for years. It’s driven by a very traditional industrial policy mindset, and it also aligns with a series of GDPR-related “privacy” rulings from Europe’s highest court that threaten transatlantic cross border data flows. Those court cases, brought by EU privacy advocates, have resulted in the ECJ ruling that US national security surveillance laws and policies do not adequately protect Europeans. Facebook has been party to those cases because it processes its massive EU user data in the US, so building data centers in Europe would help address their legal disputes too. However, it’s never been a mystery that massive modern data centers use huge amounts of power for computing and cooling, and Europe is also a global center of climate change concerns and activism. Dramatically growing power-hungry data centers inside the EU was always going to tax Europe’s green energy transition and capacity with political implications. As evident in this case.

New Bipartisan Federal Privacy Bill Continues to Spur Hope for a Breakthrough

Report from the Washington Post

In Brief – Three of the top four leaders on the House and Senate committees that have primary jurisdiction over crafting comprehensive federal privacy legislation, the two Republican ranking members and the Democratic Chairman of the House Energy and Commerce Committee, have signed off on a draft bill that they hope can break years of stalemate and be enacted this year. Key provisions include requiring companies to minimize their data collection practices, giving users the right to access, correct and delete their digital data as well as opt out of targeted advertising, and banning targeted advertising to online users under age 17, expanding current COPPA restrictions up from age thirteen. Finally, the Federal Trade Commission (FTC) would create and maintain a public registry of data brokers and provide consumers a “Do Not Collect” system similar to the FCC’s “Do Not Call” registry. The sponsors have attempted to craft compromises on the two issues that have stymied bipartisan agreement for years. On the use of consumer class action lawsuits to enforce the bill’s provisions, often called a “private right of action”, the bill limits enforcement to the FTC and State Attorneys General for four years, and then allows private lawsuits to enforce some sections of the bill if State AGs decline to pursue a case. On whether the new federal privacy law would override state measures, the bill overrides some laws but exempts others from federal preemption.

Context – For two years we’ve been watching states enact comprehensive privacy legislation and noting that when Democrats drop their insistence on a private right of action that deals are possible, including at the federal level. The current draft bill, supported by both top committee Republicans, leaves the door more open on class action lawsuits than expected. And even so, the top Senate Commerce Committee Democrat did not join the group. Besides that, in the end, Republicans may not be willing to “give a win” to Democrats on a tech issue before the upcoming election. And if they do, it may end up replacing Big Tech antitrust legislation at the finish line.

Twitter Says Initial US Antitrust Waiting Period for Musk Acquisition Bid Has Passed

Report from Reuters

In Brief – Twitter has announced that the initial waiting period under the Federal Hart-Scott-Rodino Act (HSR Act) has expired, and the $44 billion acquisition bid made by Elon Musk and accepted by the Twitter Board on April 25, can move forward. The HSR Act requires parties engaged in large merger or acquisition transactions to report their deal to the Federal Trade Commission and the Department of Justice Antitrust Division for an initial review, with the agencies having 30 days to notify the parties that they believe the transaction raises antitrust concerns and will require a lengthier review.

Context – As we’ve been saying here since late April, US antitrust scrutiny was not likely to be a major hurdle. Musk and Twitter both play huge roles in social media and digital policy dramas, but those roles are vastly outsized compared to the nuts and bolts of an acquisition that did not tick off traditional antitrust red flags. Twitter is not a “digital giant”. Its user base is a fraction of Facebook’s and TikTok’s and its market cap is “mid-size”. The platform’s appeal to politically active people, influencers and media members, and its content moderation policies, are not antitrust material. We’ve also recommended keeping a closer eye on the possibility that the more interesting US government review might come from the national security-focused Committee on Foreign Investment in the United States (CFIUS), an opaque multi-agency panel that reviews acquisitions of US firms by foreign entities. While a CFIUS challenge would push traditional norms, deals involving data-rich and digital firms have become a big priority on the bipartisan security agenda in recent years. Musk has brought non-US investors into the bid that could give CFIUS a hook to delve deeper, and Tesla’s reliance on the Chinese market, both for production and sales, has been raised by commentators concerned that the Chinese Government could press a Musk-led Twitter on global content policies. Of course, if Musk does complete his Twitter deal, it is certain to shake up the online content moderation policy space.

Facebook Trashes Apple as Anticompetitive in Comments to NTIA for App Market Review

Report from The Hill

In Brief – Meta Platforms has filed a 19-page submission with the National Telecommunications and Information Administration (NTIA) slamming Apple’s dominance of the iPhone app ecosystem and accusing it of harming competition, suppressing innovation and locking users into the iOS ecosystem. NTIA, a branch of the US Department of Commerce which oversees policy impacting the telecommunications industry, was tasked as part of the Biden White House’s competition policy initiative to report on the state of competition in the marketplace for app development and distribution. Among questions asked of industry participants and experts include how markets for apps running on mobile phones and tablets are different from apps for home computers or game consoles.

Context – The ongoing feud between Apple and Facebook, which appears to be personal between the CEOs, sees each party arguing that the other’s business model is morally flawed. Apple says that the data collection and manipulation behind much digital advertising is deceptive and anti-consumer, and increasingly defends its “walled garden” app ecosystem, decried as a monopoly by some app developers, as protecting data security and privacy that they claim consumers value. Facebook, not the best positioned advocate on any issue right now, has been the largest company willing to defend targeted advertising as benefiting millions of small businesses who can find customers despite very small ad bu dgets. Facebook and Microsoft, while digital giants, are app developers rather than mobile operating systems operators, and have taken positions aligned with aggressive app developers such as Epic Games and Match who call Apple a monopoly, including giving some support to the EU’s Digital Markets Act. Finally, Apple’s changes to its ad-related app privacy rules are believed to have negatively impacted the revenues of platforms like Facebook and Snap that sell ad targeting while Apple’s own advertising revenue grows.

State Court Judge Allows OH AG’s Lawsuit Declaring Google a “Common Carrier” to Proceed

Report from the Washington Examiner

In Brief – A judge in the Ohio Court of Common Pleas in Delaware County has ruled that a lawsuit filed last year by Ohio’s Attorney General to declare Google’s search business a “common carrier” can proceed to trial, rejecting the digital giant’s motion to dismiss the case. The state is calling on the court to block Google, as a common carrier, from prioritizing its own products like Google Flights, Google Maps, or Google News in its search results, giving equal treatment to services from other companies. The state also requested the court to declare Google Search a public utility, but that portion of the complaint was dismissed by the judge. Google’s motion to dismiss argued that Google Search is neither a common carrier nor a public utility, and further claimed that regulating it in either manner would violate the company’s First Amendment freedom of speech.

Context – While progressive calls to force social media platforms to more aggressively police online misinformation have been blocked by Republican opposition in Congress (but they can take heart from the EU enacting the Digital Services Act), Republican-dominated states have pressed social media platforms from the other direction, passing state laws proposing to regulate content moderation and ban “viewpoint censorship”. The Republican-controlled Ohio legislature has moved slower than Florida and Texas, but Ohio’s AG broke creative legal ground with his state court “common carrier” and “public utility” lawsuit targeting Google. The Florida and Texas social media laws were quickly stayed by Federal courts for violating the First Amendment. The biggest news is that the Supreme Court, by a 5-4 margin, put the Texas law back on hold after a 5th Circuit appeals panel lifted the initial stay. While the 5th Circuit judges have still not filed their full ruling explaining their decision, a panel of Republican-nominated judges in the 11th Circuit filed a well-reasoned ruling reaffirming that Florida’s law is likely unconstitutional government policing of speech, as well as trashing the “common carrier” claim that also sits at the heart of the Ohio case. But Justice Alito’s dissent opposing putting the Texas law back on hold points to a full High Court battle soon, with some justices willing to reconsider the whole set of free speech precedents for “large social companies” in the “age of the internet”.

Seattle Legislates Increased Pay for “Independent” App-Based Delivery Workers

Report from the Seattle Times

In Brief – The Seattle City Council has enacted legislation to improve wages and working conditions for independent contractor “Gig” delivery workers using platforms such as DoorDash, Uber Eats and GrubHub. The city’s “Pay Up” bill, which goes into effect in 2023, endeavors to increase wages by requiring the platforms to pay minimum per-minute and per-mile rates to drivers that will at least meet the city’s $17.27 minimum wage and provide mileage reimbursement as set by the Internal Revenue Service. The measure does not propose to change the classification of the app-based workers to become company employees. Council Members have indicated their interest in expanding the law to cover deactivation from apps, anti-discrimination policies and mandate restroom access for food delivery drivers, while also adding workers from other Gig work platforms, such as TaskRabbit and Rover, who were dropped by an amendment late in the process.

Context – It’s been uneventful on Gig work legislation in the US since voters in deep-blue California passed Prop. 22 in November 2020 exempting Gig drivers from the state’s law classifying many independent contractors as company employees. The State of Washington is pointing to a possible compromise path that regulates pay and benefits outside employee status. Seattle’s measure follows Washington enacting the first state-wide US law in March creating minimum pay and benefits for app-based drivers that did not propose reclassifying workers, a middle ground that creates division among advocates for organized labor. Europe remains the hub of Gig work regulation, with UK courts requiring Uber to bring on platform drivers as workers, Spain and Portugal enacting Gig driver and food delivery worker laws, and the European Commission moving forward on legislation regulating all digital labor platforms in some manner. Finally, a Prop. 22-style ballot initiative showdown remains possible in Massachusetts in November.

Google Faces a Wide Ranging Digital Ad Market Competition Investigation in the UK

Report from Bloomberg

In Brief – The UK Competition and Markets Authority (CMA) has announced an antitrust investigation into Google’s massive digital advertising business. The probe focuses on three key parts of the digital “adtech stack” where the CMA believes Google is the largest service provider: demand-side platforms such as YouTube, which allow advertisers to buy publishers’ advertising inventory; ad exchanges, which provide the technology to automate the sale of publishers’ inventory; and ad servers, which manage publishers’ inventory and decide which ad to show. The regulator is investigating whether Google limited the interoperability of its ad exchange with third-party ad servers, illegally linked or favored its own services on its platforms or took steps to exclude rival services. In March, the CMA opened a separate investigation of the “Jedi Blue” advertising agreement between Google and Facebook.

Context – Google’s digital ad services have drawn antitrust scrutiny in numerous markets, including a major US State AG antitrust suit, broad ad market inquiries in the UK and Australia, and an investigation by the European Commission. However, antitrust suits take a long time, a fact that has spurred policymakers to propose competition-policy inspired regulation to address self-preferencing, discriminatory and exclusionary conduct by the largest digital platforms, including the EU’s Digital Markets Act and German legislation authorizing its national competition authority to regulate platforms like Google as a platform of ‘paramount significance across markets’. Bipartisan legislation recently introduced by antitrust policy leaders in the US Senate would bar a company with more than $20 billion in digital advertising revenue from both owning services to help buy and sell online ads and operating an ad exchange where those transactions occur, forcing Google to sell off parts of its advertising business. Plus, with Google reportedly controlling just 28.6% of the $211.2 billion in US digital ad spending last year, not relying on courts may be a safer bet.

Nigeria Explains Their Opposition to the OECD Global Tax Plan is Limits on Digital Taxes

Report from Bloomberg

In Brief – The head of Nigeria’s federal revenue service has indicated that the country, Africa’s most populous, did not sign onto the global corporate tax reform agreement reached at the OECD last year because it believes that the deal too greatly limits the ability to tax large foreign digital companies. Muhammad Nami, executive chairman for the Federal Inland Revenue Service, said that many multinational enterprises that operate in the country, including many digital firms and corporations that currently pay Nigerian taxes, do not meet the proposed corporate size thresholds of 20 billion euros ($21.4 billion) in annual turnover and a global profitability of 10%, potentially exempting digital sales from taxation in the country. Nigeria has implemented national digital taxation policies, including applying VAT to digital services sold to Nigerian customers, with collection and remittance by digital platforms, including large foreign platforms such as Google and Meta.

Context – The massive two-part global corporate tax reform deal aims to address two issues – effective taxation of digital giants like Google and Apple, and low corporate tax strategies that some countries use to promote corporate investments and growth. “Pillar 1” of the OECD plan, a top priority of the EU, was originally a new tax regime for digital giants, but morphed into new tax rules for approximately 100 highly profitable consumer-facing companies. “Pillar 2”, the top priority of the Biden Administration, undermines corporate tax havens by having countries agree to set their tax rate for multinational companies no lower than 15 percent. While G-7 countries have celebrated the OECD deal as “ending the race to the bottom” in corporate taxation, some development economics experts question the value for Low and Middle Income Countries (LMICs), while Kenya, Nigeria, Pakistan, Sri Lanka and a majority of countries in Africa, including Nigeria and Kenya, have refused to sign on.

Spain Fines Google for Sharing Right-to-be-Forgotten Takedown Requests with Researchers

Report from TechCrunch

In Brief – The Spanish data protection authority has determined that Google has violated the GDPR by transferring EU citizens data to a third-party without a legal basis and fined the search giant 10 million euros. The ruling involves Google’s procedures related to the EU’s Right to be Forgotten (RTBF) which requires search engine companies to remove links to online information that is outdated and irrelevant. Google claims to have received requests to remove more than 2.4 million URLs since it was affirmed in a 2015 ECJ ruling, mostly related to old criminal convictions or bad business practices. The third-party Google was transferring data to is the Lumen Project, an academic project of Harvard University’s Berkman Klein Center for Internet & Society. The Berkman Center researchers, studying legal requests for the removal of online information, are amassing a database of content takedown requests globally.

Context – The Right to be Forgotten, while now well established in Europe, is foreign to most of the Internet. This most recent ruling from the Spanish data protection authority, the home of the original case that led the European Court of Justice (ECJ) to establish the current law under the General Data Protection Regulation, is similar to a 2020 ruling of the Swedish data protection authority regarding Google’s practice of notifying website operators when one of its pages was being delisted based on RTBF. The Swedish regulator ruled that Google did not have authority to notify website operators that they were the subject of a delisting request nor than such an action had been undertaken, fined the search giant approximately 7 million euro, and ordered an end to the practice. More recently, a key legal advisor to the ECJ has proposed that Google’s responsibilities under the RTBF should be expanded to include fact checking claims that online information is inaccurate, effectively expanding the obligation of search engine operators beyond the current standard of outdated and irrelevant information to include information that is false.

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