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December 22, 2021updated 30 Sep 2022 10:52am

Open web group calls on CMA to ‘freeze scene of the crime’ of Google cookie phase-out

By Bron Maher

Campaign group Movement for an Open Web has called on the Competition and Markets Authority “to impose a formal restraining order” on Google over the tech giant’s plans to replace third-party cookies.

The group, which consists of advertisers, publishers, and tech companies, has said that Google’s own engineers found if it “removes ‘third-party’ cookies used by businesses without an adequate replacement, most of the world’s top 500 publishers would lose more than 50% of their revenue, and some over 75%.

“This is tantamount to a major threat to journalism as news publishers increasingly rely upon digital advertising for income,” the group said.

In June Google delayed its mothballing of cookies to late 2023, saying “more time is needed across the ecosystem to get this right”.

The CMA emphasised that Google is supposed to be proposing an alternative to third-party cookies, which allow advertisers to serve more targeted ads to consumers.

A CMA spokesperson said that “The analysis MOW cite is based on the removal of third-party cookies (TPCs) used by businesses ‘without an adequate replacement’.

“The CMA is investigating Google’s proposals to replace TPCs and other functionalities with a range of changes known as the Privacy Sandbox proposals.

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“We have received an offer of modified commitments from Google to address the CMA’s competition concerns which if accepted would be legally binding.”

Google agreed last month to let the CMA oversee its plans for the Privacy Sandbox.

[Read more: Google agrees to let UK competition watchdog oversee its Privacy Sandbox plans]

But Tim Cowen, MOW’s legal representative and chair of antitrust practice at boutique law firm Preiskel & Co, told Press Gazette that Google was still yet to concretely suggest a replacement to cookies within its Privacy Sandbox proposals.

“What Google proposed as a potential alternative, more than a year ago, was a thing called FloC [Federated Learning of Cohorts]. And that didn’t work so they gave up on it. So there isn’t anything out there.

“Now, what Google has done is to propose undertakings to the CMA… [which] provide a mechanism so that the CMA can oversee anything Google does come up with — if it comes up with [an alternative], maybe, some point in the future.”

Cowen argued this is not enough, however: “You can have your long drawn out consultation, but provided you’ve frozen the status quo. It’s standard practice legally to issue an injunction — freeze the scene of the crime while the police investigate. That’s what’s needed.”

Cowen told Press Gazette that MOW was not necessarily arguing for the virtues of cookies themselves.

“What we’re against is discrimination. What Google’s doing is discriminating between two categories of things: things that it uses and things that it doesn’t use. 

“Now, if somebody says nobody gets to use cookies, everybody would be happy. So we’re not inherently saying the cookie is the best thing in the world…

“What we would like to see is open choices freely enabled by individuals in an open marketplace, which means that they shouldn’t be faced with a monopolist saying ‘You gotta sign up’ in order to get where you want to get to on the internet.”

The MOW argues that because Google is proposing to keep first-party cookies — i.e. those that are directly stored by a website — but not those created by third-party domains, it is putting itself and other large businesses at an advantage.

He said companies such as newspaper publishers or online shopping portal Etsy would be hit as they “host a lot of adverts from somebody that isn’t the same domain”.

“If you’re part of the same corporate group — so if you’re Google, and you’ve got YouTube and lots of domains within the same corporate group… Then that won’t be blocked,” he added.

“If you’re a network of small businesses, or small business that hosts other people’s websites or other people’s advertising — big problem.”

Press Gazette has approached Google for comment.

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