French advertising organizations lodge complaint with competition regulator over Apple privacy changes

An ADLC spokeswoman confirmed the authority had received the complaint and indicated the authority would “examine it with the utmost care” as this is a sector it is “monitoring closely.”

In a statement, an Apple spokesman said the company believes “privacy is a fundamental human right” and that it supports the European Union’s leadership in protecting privacy with laws such as Europe’s General Data Protection Regulation.

“A user’s data belongs to them and they should get to decide whether to share their data and with whom. With iOS 14, we’re giving users the choice whether or not they want to allow apps to track them by linking their information with data from third parties for the purpose of advertising, or sharing their information with data brokers,” the statement continued. “These rules apply equally to all developers — including Apple — and we have received strong support from regulators and privacy advocates for this new feature.”

The upcoming change, announced in June, will require all app developers to request permission from users in order to track them or access their device’s advertising identifier — known as the IDFA — in order for other companies or websites to use that information for advertising or the measurement of ads. The change was originally expected to roll out in September, to coincide with the launch of Apple’s iOS 14 operating system, but the company delayed the implementation until an unspecified point early next year to give developers more time to prepare. 

Ad tech observers have argued that presented with a simple option to either opt out, or opt in to tracking, a majority of users are likely to opt out — which would likely drive down app publishers’ ad rates. Plus, experts have said, the change will also be highly disruptive in areas ranging from measurement, to frequency capping and fraud prevention. Another outcome of the IDFA changes, observers have surmised, could be that more developers choose to charge users for their apps, rather than monetizing them through advertising, which would allow Apple to take a cut of that revenue under current App Store rules. Apple still offers a publishers an “identifier for vendors” — IDFV — enabling them to use their first-party data for personalized ads across the suite of different apps they own. The company also says it doesn’t share device data with data brokers or link data collected from its apps with user or device data collected from third-parties for advertising or measurement purposes.

The coalition of French companies argue that Apple is imposing unfair trading conditions on app developers and leveraging its dominant position in the app space to distort competition in the app advertising market and companies adjacent to it.

For one, the coalition alleges, Apple is not imposing the same opt-in conditions on its own services. Instead, users who wish to opt out of Apple serving personalized ads to them within its App Store or News app must instead visit their settings where personalized ads are opted in by default. Apple says its AppTrackingTransparency framework — referred to in the industry as ATT — also applies to Apple itself.

The coalition also argues the small pop-up box app developers must display to users to gain permission doesn’t meet standards for the European Union’s General Data Protection Regulation and the ePrivacy Directive. The pop-up —in which only two lines of text can be customized by the publisher — does not allow for user consent to be “informed” and “specific,” the coalition argues. Plus, a user can only revoke their initial choice by uninstalling and reinstalling the app, according to the coalition. (Digiday previously reported that one privacy law expert — Wayne Matus, co-founder and general counsel at SafeGuard Privacy — found Apple’s decision to create a uniform consumer experience not to be in violation of the GDPR.)

“We have nothing against privacy: It’s a matter of [Apple] using privacy as an excuse to do other things,” said Damien Geradin, founder of EU competition lawyers Geradin Partners and legal counsel for the coalition of trade bodies making this complaint. “We really think that [Apple] will claim, ‘it’s privacy — privacy is a human right’ … but strategy enough they are profiting from what they are doing, so I would question the legitimacy of their move.”

In the complaint, the trade bodies are requesting urgent interim measures to for Apple engage in further dialog with the online ad industry to find a less disruptive privacy solution. In the meantime, it is looking for a further delay on Apple requiring app developers to display the permission pop-up. The coalition says it is also expecting the ADLC to investigate the complaint, even if the competition authority doesn’t grant an early intervention.

Without an obvious test case in this area, it’s unclear whether the coalition’s efforts will be successful.

“It’s clear that commercial policy decisions by Big Tech players like Apple regarding their ecosystem can have dramatic effects on many other companies. But it’s not clear that antitrust law, as it’s currently framed, can swiftly impose ‘remedies’ to protect rival services,” said Richard Kramer, managing director and founder at Arete Research via email. “As one example, Spotify’s noisy insistence that regulators take action around the Apple One bundle might simply reflect its weak competitive position,” said Kramer.

Spotify filed an antitrust complaint to the European Union’s antitrust division last year, accusing Apple of making it difficult for other subscription services to promote themselves to users without using Apple’s own payment system, which takes a cut of those services’ sales. The European Commission’s investigation is still ongoing.

In December, Spotify and a group of other large app developers and Apple critics — including Fortnite maker Epic Games, Basecamp and Deezer — formed the nonprofit Coalition for App Fairness to push for better treatment from app store owners and online platforms. 

The Interactive Advertising Bureau France, Mobile Marketing Association France, Syndicat des Régies Internet and Union Des Entreprises de Conseil et Achat Média were co-signatories on a July letter to Apple CEO Tim Cook, expressing their concerns about the impact of the IDFA changes and alleging the opt-out pop-up is not compliant with GDPR.

Apple did meet with that coalition — which also included trade bodies outside France including IAB Tech Lab, IAB Europe, News Media Europe and the European Publishers’ Council — in September. 

Nicolas Rieul, president of IAB France, which is leading that particular coalition of trade bodies’ dialog with Apple, said conversations were still ongoing.

“At this point there is no guarantee at all,” that Apple will change its course, which is why the French trade bodies chose to take their request to the ADLC, said Rieul. Other organizations are also supporting the complaint lodged with the ADLC, Rieul said, without disclosing names.