More antitrust litigation targeting Big (ad)Tech: Google is being sued in the U.K. and the Netherlands where two suits have been announced today seeking damages on behalf of publishers who claim they have been harmed by anti-competitive adtech practices.
Per Reuters, publishers are seeking up to €25 billion in damages from Google for lost ad revenues via the litigation.
Google’s adtech stack — and certain other ad-related practices — are currently under investigation by both EU and U.K. competition authorities. However, last year France’s antitrust watchdog found the tech giant had abused a dominant position for ad servers for website publishers and mobile apps — fining Google up to €220 million for a variety of self-preferencing abuses; and extracting a series of interoperability commitments. The French regulator dubbed the case a world first in probing its complex algorithmic ad auctions.
The tech giant did not dispute the facts of the French case — and that appears to have given succour to the litigants.
Law firm, Geradin Partners, which acted for complainants in the French Competition Authority case, is leading the U.K. and EU damages actions. “The French Competition Authority found Google had abused its dominant position by engaging in various forms of self-preferencing in breach of Article 102 TFEU,” it noted in a press release. “Specifically, Google used its publisher ad servers by favouring its own ad exchange and had used its ad exchange to favour its publisher ad server. Both practices had been in place since 2014. Google’s anticompetitive conduct was found to have caused harm to publishers. Google did not contest the findings.”
Commenting in a statement, Damien Geradin of Geradin Partners, added: “Publishers, including local and national news media who play a vital role in our society, have long been harmed by Google’s anticompetitive conduct. It is time that Google owns up to its responsibilities and pays back the damages it has caused to this important industry. That is why today we are announcing these actions across two jurisdictions to obtain compensation for EU and UK publishers.”
Both legal actions are being funded by London-based litigation funder, Harbour — which touts a 76% “success rate” on its website.
The Dutch action is a collective damages claim representing EU publishers. While, in the U.K., the litigants intend to bring an opt-out claim to the Competition Appeal Tribunal, which the law firm said will focus on recovering compensation for lost revenue from the sale of advertising space on the websites of class members. (The parallel claims likely reflect differences in legal regimes for bringing competition class-action style claims inside and outside the EU.)
Reached for a response to the litigation, a Google spokesperson attacked the suits as “speculative and opportunistic”.
Here’s its statement:
Google works constructively with publishers across 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. When we receive the complaint, we’ll fight it vigorously.
Google has already faced a hefty bill related to its dealings with news publishers in France — following a €500BN fine by the competition regulator for breaching an earlier order to fairly negotiate copyright fees for use of snippets of publishers’ content (following a 2019 reform of EU digital copyright law).
But successful antitrust litigation could substantially crank up Google’s costs. And it’s worth noting that, in recent years, an EU directive was adopted that’s intended to remove obstacles to consumers and businesses bringing antitrust damages actions across the bloc.
Separately, Google is being sued in Europe by price comparison service, PriceRunner — which is seeking a few billions in damages after accusing it of breaching a 2017 EU antitrust order related to its product price comparison service.
While — since 2019 — Google’s adtech has been under formal investigation by its lead privacy regulator in the bloc, Ireland’s Data Protection Commission, following a series of complaints targeting the behavioral ad industry’s abusive surveillance of web users.
Returning to antitrust litigation, in another recent opt-out competition class claim targeting big adtech, Facebook’s parent entity, Meta, is currently being sued for damages on behalf of U.K. users. In that case the litigant alleges the social networking giant imposed unfair terms, prices and/or other trading conditions on Facebook users — including by requiring users to hand over their personal data as a condition of access to the Facebook social network, and failing to share with users the profits it makes from such data — linking a loss of privacy to a claim of anti-competitive conduct.
A certification hearing is due to take place at the end of January which will determine whether or not the antitrust case against Meta proceeds.