A major claim against Google over its “anti-competitive” adtech that could earn UK publishers billions has been permitted to move forward to a trial.
The claim alleges that Google abused its dominant position in the adtech market, causing huge losses to UK publishers worth as much as £13.6bn.
London’s Competition Appeal Tribunal on Wednesday certified the claim and allowed it to go to trial, dismissing Google’s arguments against it.
The claim, which is brought by Ad Tech Collective Action LLP, represents UK publishers on an opt-out basis – meaning they are included unless they ask to be removed.
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It includes all publishers of content on websites and apps in the UK who received revenue from the sale of ad units from 1 January 2014 to 30 November 2022.
The claims of UK publishers who only received such revenue after 30 November 2022 may be added in due course.
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The claim also includes a smaller group of publisher partners or resellers who have specifically opted in.
Luke Streatfeild of Hausfeld & Co. LLP, Toby Starr of Humphries Kerstetter LLP and Damien Geradin of Geradin Partners Limited, who are leading the litigation on behalf of Ad Tech Collective Action LLP, said in a joint statement: “Despite Google’s attempts to derail this necessary and timely action, the Tribunal has seen that the case is well-argued and provides a clear blueprint to trial.
“Google’s practices continue to cause significant damage to the UK media landscape. This unanimous certification judgment is a first step in delivering proper compensation to Google’s victims.”
The group have third-party litigation funding to bring the claim, as well as insurance covering Google’s costs of defending it. This means, it said, “affected UK publishers will not pay costs to participate in this legal action nor will they have any financial risk in relation to Google’s costs”.
Oliver Bethell, legal director at Google, said: “Google works constructively with publishers across the UK and Europe – our advertising tools, and those of our many adtech competitors, help millions of websites and apps fund their content, and enable businesses of all sizes to effectively reach new customers. These services adapt and evolve in partnership with those same publishers.
“This lawsuit is speculative and opportunistic. We’ll oppose it vigorously and on the facts.”
Abuse of market dominance allegations in Google adtech claim
The claim contends that Google occupies a dominant position, and has abused that position, in the markets for publisher ad servers, supply side platforms (SSPs), and demand-side platforms (DSPs).
It says Google’s publisher ad server DFP treated its own SSP AdX more favourably than rival SSPs.
It adds that AdX treated DFP more favourably than rival publisher ad servers.
And finally that Google’s DSPs Google Ads and DV360 treated AdX more favourably than rival SSPs.
The Competition Appeal Tribunal found in a ruling published on Wednesday that the allegations being made against Google “are triable and that – should the matter proceed to trial – the harm to the class and the loss and damage suffered by it can be quantified”.
Google had argued that the case was “insufficiently pleaded” and that the methodology in support of its claims about the losses to publishers was “insufficiently articulated”.
Among its objections to the claim, Google suggested it was necessary for Ad Tech Collective Action to “specify how the non-discrimination could have been avoided” but the CAT disagreed.
The claim was initially two rival lawsuits – both on an opt-out basis – but they were given permission to join together several months ago. The CAT has now given permission for publishers to be represented on an opt-out basis by the combined group.
Claudio Pollack, a partner of Ad Tech Collective Action LLP, said: “This is a decision of major importance to the victims of Google’s anti-competitive conduct in ad tech. Google will now have to answer for its practices in a full trial.
“I look forward to working with our legal and economic advisers to deliver compensation for years during which the relevant markets did not provide a competitive outcome for the UK publishing market.”
Other adtech claims and investigations against Google
The UK claim is allowed to continue to trial at the same time as other lawsuits being brought against Google internationally.
The UK’s Competition and Markets Authority is currently conducting its own investigation into whether Google might have abused a dominant position through its conduct in adtech.
In the US, the Department of Justice is suing Google for an alleged “systematic campaign to seize control” of the digital advertising market by buying up tools relied on by publishers and advertisers, violating federal anti-trust laws.
Last year the European Commission informed Google of its preliminary view that the company has breached EU anti-trust rules by favouring its own services and thus distorting competition in adtech.
In 2021 France fined Google €220m for abusing its dominant position in display advertising and as a result the tech platform agreed to “make it easier for publishers to make use of data and use our tools with other ad technologies”.
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