UK's antitrust watchdog orders Facebook to sell Giphy




 

In a significant push against big tech's ability to maintain market dominance through sheer buying power, the UK's competition watchdog has ordered Facebook (now Meta) to reverse its acquisition of animated GIF platform, Giphy -- confirming the Financial Times' earlier reporting.

The Competition and Markets Authority (CMA) said its phase 2 investigation cemented its earlier competition concerns about the impact of Meta owning and operating Giphy -- and it's now ordering Meta to sell Giphy.

In a statement, Stuart McIntosh, chair of the independent inquiry group heading the CMA probe, said: "The tie-up between Facebook and Giphy has already removed a potential challenger in the display advertising market. Without action, it will also allow Facebook to increase its significant market power in social media even further, through controlling competitors' access to Giphy GIFs."

"By requiring Facebook to sell Giphy, we are protecting millions of social media users and promoting competition and innovation in digital advertising," he added.

The watchdog's intervention follows an extended investigation of the acquisition that Facebook announced (and completed) in May 2020, with the CMA taking an initial look in summer 2020 -- and dialling up its scrutiny over the following months.

It also, in June 2020, ordered a halt to further integration of Giphy by Facebook while the oversight continued.

In another first last month, the regulator fined Facebook almost $70 million for deliberately withholding information related to ongoing oversight of the acquisition -- billing the infringement a "major" breach.

The CMA's preliminary report on the Facebook-Giphy acquisition, this August, concluded that Facebook's takeover of Giphy raised a number of competition concerns -- including that it would harm competition between social media platforms, given the lack of choice in the supply of animated GIFs.

The regulator's concern was not only that Facebook might simply deny rivals access to Giphy content for their users to reshare but that the data-mining giant might change the terms of access -- and could, for example, require rivals like TikTok, Twitter and Snapchat to provide it with more user data in order to access Giphy GIFs.

The CMA appears to have held to its concern on the risk of competitive harm through data extraction from other services, as well as from other more obvious risks -- such as Facebook shutting off rivals' access to the platform -- hence rejecting all the tech giant's proposed alternative 'remedies' to selling Giphy as insufficient.

"After consulting with interested businesses and organisations -- and assessing alternative solutions (known as 'remedies') put forward by Facebook -- the CMA has concluded that its competition concerns can only be addressed by Facebook selling Giphy in its entirety to an approved buyer," the CMA writes in a press release.

In the summer the watchdog had also said it was concerned about the impact on digital 'display' advertising -- as Giphy had, pre-merger, been offering paid advertising services in the US (and considering expanding to other countries including the UK) which it said had the potential to compete with Facebook's ad services. However this competition was terminated by Facebook's takeover.

"The CMA found that Giphy's advertising services had the potential to compete with Facebook's own display advertising services," the regulator writes now. "They would have also encouraged greater innovation from others in the market, including social media sites and advertisers. Facebook terminated Giphy's advertising services at the time of the merger, removing an important source of potential competition. The CMA considers this particularly concerning given that Facebook controls nearly half of the £7 billion display advertising market in the UK."

A summary of the CMA's final report can be found here.

The regulator's merger assessment hinges on whether -- on a "balance of probabilities" standard -- there will be a "substantial lessening of competition" (SLC) should the takeover go ahead. And in the case of Facebook-Giphy that is what it has concluded -- finding very limited choice of alternatives to Giphy for (other) social media platforms; and that Facebook has significant market power in display advertising in the UK, among other contributing concerns.

The CMA was particularly interested in Giphy's potential to develop its paid advertising model, including a potential UK launch, noting feedback from advertisers had been positive about the GIF-based ad format and also that "due to its GIF format, the Paid Alignment model of advertising is subtle and intrinsic to the message, rather than interrupting it" -- something its report notes was "reflected in Giphy's internal documents" and "Facebook's internal documents also discuss the importance of monetising messaging".

It also concluded that Facebook would have an incentive to foreclose rivals' access to Giphy -- which led to another conclusion that the merger "will result in an SLC in social media as a result of vertical effects, in the form of input foreclosure".

The CMA assessed a number of other potential 'remedies' to addressing the competition concerns vs requiring Giphy to be sold -- considering and rejecting three options suggested by Facebook.

Facebook's suggestions were: a) open access -- to maintain access to Giphy of existing and new API partners; b) a 'commingling' remedy, to remove a restriction contained in Giphy's ToS against commingling its search results with results of another GIF provider -- which Facebook suggested would "enable a potential Paid Alignment provider to increase the attractiveness of its product by allowing it to intersperse Giphy's GIFs with its own ads"; and c) a white label licensing remedy, that would involve the creation and sale of a white label copy of Giphy's content library and a licence to use its search algorithm for five years.

The CMA describes Facebook's 'remedies' as "behavioral" rather than "structural" -- and in rejecting them as unsuitable it's notable that it highlights the challenge of ongoing compliance monitoring, as well as the proposals themselves not being sufficient to address all its concerns, writing: "Structural remedies are normally preferable to behavioural remedies, as they address the adverse effects of the Merger at source. Although behavioural remedies may be suitable in certain cases, this Merger does not have such characteristics."

(Notable because the CMA has, in a separate oversight procedure -- related to Google's proposal to deprecate support for tracking cookies -- said it is minded to accept a number of behavioral commitments made by Google, such as limits on the data it can use for ads, around the level of transparency it provides to rivals, and the appointment of a monitoring trustee to audit compliance. But of course that's not a merger review; it's a competition complaint.)

"In particular, the SLCs that we have found are dynamic in nature and are not time-limited, reducing the likelihood that a behavioural remedy would provide an effective and comprehensive solution," the CMA goes on in the summary of its final report on Facebook-Giphy. "We also found a number of specific risks with Facebook's proposed remedy options, including their inability to comprehensively address the SLCs, the challenges in specifying Facebook's obligations, the risks of Facebook being able to circumvent these obligations, and the difficulties in monitoring and enforcing Facebook's compliance with these obligations. We therefore found that Facebook's remedy proposals would not be effective in addressing the SLCs we have found."

While the CMA has concluded that only a full divesture of Giphy will be effective, there is some complication here -- in that the merger was already completed and Facebook had taken steps to integrate Giphy, including terminating its revenue function and team; the transfer of back office functions to Facebook; and Giphy staff being moved onto Facebook employment contracts.

In order to address these "particular challenges", the CMA says Facebook must reinstate some of the dissolved business functions and assets -- "to ensure that Giphy has the necessary management, technical and creative personnel to enable it to compete effectively throughout and following the divestiture".

"We anticipate that Facebook will need to provide appropriate financial and other incentives to encourage former Giphy employees to transfer back to Giphy, and to recruit appropriate replacements for any key Giphy staff who choose not to do so. We also anticipate that Giphy will need to be divested with sufficient financial resources to allow it to operate and compete as it would have done had it not been acquired by Facebook," it adds.

Meta/Facebook was contacted for its response to the CMA's order to undo the Giphy acquisition.

The company responded aggressively to the CMA's provisional findings this summer -- denouncing the analysis and questioning the UK regulator's jurisdiction over its business.

In a brief statement now, in response to the CMA's final word, a Meta spokesperson said:

Killing killer acquisitions?

Concern over so-called 'killer acquisitions' -- aka the ability of tech giants' to flex their financial muscle to protect market power by buying budding competition to defuse the risk posed by startups and new services (sometimes literally by closing them down post-purchase) -- has been a major topic of concern among industry watchers for years.

The critique centers on how competition regulators have failed to evolve theories of harm to keep pace with digital market dynamics. Failing, for example, to consider how data itself can be used as a tool against competition. Dominant platforms can also easily leverage their market power in one channel to rapidly scale into a new segment, via tactics like self-preferencing. While 'free' at the point of use services may still entail significant harms for consumers -- such as abuse of their privacy.

In recent years, legislators and regulators have started to respond to such concerns -- including by updating rules, such as in Germany which passed an update to its regime to cover digital platforms at the start of this year. (The country now has a number of open procedures against tech giants (including Facebook) to confirm its ability to impose preemptive measures.)

In the US, the Biden administration's elevation of Lina Khan to chair the FTC, earlier this year, marks key moment of change on US soil -- signalling lawmakers' support for a reformist approach toward regulating tech.

It follows Khan's landmark paper (on Amazon) which examined how the government's outdated ways of identifying monopolies have failed to keep up with modern business realities. What was initially dismissed by some -- as 'hipster antitrust' -- is now setting the establishment regulatory agenda. Although Khan still faces huge opposition on home soil from the tech lobby working through channels like the US Chamber of Commerce.

Over in the EU, the Europe Commission has also been working to address the lag between tech and antitrust.

Since December it's had a draft proposal on the table for a set of ex ante rules to apply to intermediating platform giants (aka, those classified as 'gatekeepers' under the Digital Markets Act). And earlier this month MEPs backed an intervention on killer acquisitions by voting for the Commission to have powers to impose structural or behavioural remedies where gatekeepers have engaged in systematic non-compliance.

Although whether the DMA will go far enough to actually help reboot competition remains to be seen.

The UK, now outside the bloc, has its own update to domestic competition law incoming, also aimed at tackling platform power -- with a new regime of "pro-competition" bespoke rules for platforms deemed to have 'strategic market status'.

All this comes too late to undo plenty of baked in tech consolidation, however. But not too late to undo Facebook-Giphy -- as regulators have clearly been sharpening their understanding of digital markets (and harms) for some years now.

Outdated approaches to regulation of digital markets have, nonetheless, allowed thousands of tech acquisitions to be waived through over the past decades -- including Facebook's purchase of photo-sharing site Instagram, messaging platform WhatsApp and VR headset maker Oculus, to name three strategic takeovers which span the core social networking arena that Facebook/Meta owns and wants to keep owning for decades to come (in an even more immersive/invasive form; aka "the metaverse").

And only at the end of last year the Commission failed to block Google's acquisition of health wearable Fitbit -- despite a huge outcry from civil society warning over the rights risks of letting the adtech giant further entrench its dominance by gobbling up such sensitive data. Instead of blocking the acquisition, the EU's competition commission accepted a number of behavioral 'remedies' proposed by Google -- which included a promise not to shut out third party developers from Fitbit's API; and a pledge not to use Fitbit health data for ad targeting for a full ten years.

More recently the CMA also cleared Facebook's acquisition of CRM maker Kustomer -- again using a fairly narrow assessment of potential competition risks -- and entirely ignoring privacy advocates who were raising concerns over what the adtech giant would do with Kustomer users' data.

The CMA's decision now to order Facebook to reverse its acquisition of Giphy is a significant development -- albeit, it's still just one decision that hasn't gone big tech's way.

Discussing the move in response to questions from TechCrunch, professor Tommaso Valletti, a former chief competition economist within the Commission -- who worked under current EVP Margrethe Vestage -- described the CMA's move as a "highly symbolic decision". But he cautioned against reading too much into one 'no'.

"I've been repeating the figures "1000 and 0": mergers done by GAFAM and mergers blocked in past 20 years. So having finally a 1 does not change the overall picture but it's a signal," he told us.

Earlier this year the Commission made it possible for Member States to refer cases for merger review when they may fall between the cracks of national antitrust policy, with the risk of an innovative tech or business being acquired (on the cheap) by a more established rival in order to kill budding competition.

Valletti also pointed out that Vestager has finally signalled an intention to discuss big tech acquisitions with US lawmakers -- which he dubbed "another good sign", saying the EU "was (and still is) lagging on this".

Major reworking of how antitrust gets applied in the US will clearly be essential to rein in what remain (mostly) US tech giants -- however innovative the actions of individual (or even pan-EU) regulators elsewhere.

"As for 'new' theories of harm, I think it's just that the CMA has good economists that are aware of what economics has being saying and finding in the past 10 years: Data are part of the business model, so they must be part of the competitive assessment too," Valletti added in further remarks on the CMA's decision to undo Facebook-Giphy. "It's not 'just' a privacy issues dealt by someone else.

"Good economics, openness of mind, and a higher risk appetite by their leadership, means the CMA is trying to move the bar in a typically extremely conservative field with shy regulators. Let's be hopeful!"

As noted above, the UK is working on a reform of competition law that's specifically targeted at platform giants -- with so called 'strategic market status' -- who will be regulated under an ex ante require of bespoke rules in the future. Although the necessarily legislation to empower the dedicated Digital Markets Unit that's been set up to focus on this area is still pending.

Still, the CMA hasn't been sitting on its hands in the meanwhile, with a number of open investigations into various aspects of big tech's business and ongoing scrutiny of acquisitions.

The UK's regulatory regime has a free hand to go its own way on tech policy -- and big tech M&As -- given the country is not longer a member of the EU. Although UK regulators have said they continue to consult with international counterparts on issues of common concern.

While the bloc is seeking to harmonize digital regulations under incoming legislative updates and extensions such as the DMA and the Digital Services Act, there has been some concern that EU lawmakers' push to reduce 'fragmentation' may end up benefiting tech giants -- i.e. if it removes the ability of individual Member States to pass more ambitious legislation.

UK regulators could thus end up addressing shortfalls in the bloc's one-size-fits-all plan -- for a list of behavioral 'dos and don'ts' for platform giants -- by applying a more tightly tailored regime that's designed to address specific problematic practices of each tech giant. Having creative thinkers at the CMA therefore looks vital.

 

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