Report from TechCrunch
In Brief – The Bundeskartellamt, Germany’s national competition authority, has announced that it suspects that Apple is not treating third-party app developers as equally as required under the special German antitrust regime established to regulate the largest digital platforms. In 2022, the Germany regulator began investigating 2021 changes Apple made to its iPhone operating system requiring third-party apps to get direct opt-in permission from users to track their online activity for the purpose of serving targeted ads as potentially being unfair to competitors. While Apple heralded their tracking policy as promoting user privacy, many app developers and competitors in the digital advertising business complained that Apple’s changes harm competition and unfairly benefit Apple’s own advertising business. After three years the German antitrust watchdog says that Apple’s policy raises several concerns, including that Apple applies rules to data processing for advertising by third-parties that do not apply to Apple’s own data practices involved in advertising, Apple applies more consecutive user consent boxes to third-party apps than to itself, and that Apple’s tracking consent dialogues are unequal, with the language for consent to Apple tracking designed to encourage users to accept while language for tracking by third-party apps steers users against acceptance. Similar EU member state antitrust investigations have also been initiated in Poland, France, and Italy.
Context – The German law allowing the FCO to regulate digital giants was a harbinger of the Digital Markets Act. Some German officials have questioned the DMA for being too limited in the types of conduct they can address. While there are seven DMA “gatekeepers”, only 24 of their designated “core platform services” are covered by the law. Germany’s Section 19(a) authority allows the FCO to regulate any service of the five designated digital giants. For example, the FCO used its authority to regulate Google’s auto services that are currently outside the scope of the DMA. Allegations that Microsoft uses Office 365 to benefit products like Teams and its cloud services are not in scope for the DMA, but they are for the FCO.