Commentary

The Duopoly Is Back In The EU Dock -- Expect Massive Fines

Take your seats, ladies and gentlemen -- we're off again. The European Commission has launched a formal enquiry into how Facebook and Google handle data by way of preparing questionnaires the duopoly have to fill in to shed light on how they gather, process and monetise consumer information.

It was almost inevitable that at some stage Margrethe Vestager would return to investigating the duopoly. The Competition Commissioner is now also Vice President for Digital Affairs at the European Commission, a promotion that left few in any doubt as to what would come next.

Let's not forget that she has already led investigations that have cost Google $9.5bn for anticompetitive actions around prioritising Google businesses in search results and leveraging its power in mobile to enforce Android phone makes to instal its apps. 

In fact, we may not have seen the last of that search enquiry. Twenty-one EU businesses have signed a joint letter complaining that Google is still not playing fair in search, requesting that further action should be taken. We will have to wait to find out what the Commission's response is.

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For now, as City A.M. reveals, we have a new enquiry into how data is collected and used in local search and online advertising by the duopoly. As the paper broke the story, it reminded readers that the duopoly are now the subject of antitrust action in 47 states. 

I think the local search aspect here gives an inkling of one of the areas of interest. Local search not only includes generic data the duopoly can pick up, but also location.

The ICO was clear at the end of November that it was concerned how freely available personal information about internet users was, including location, without the transparency required to show the information has been gathered with each user's explicit and informed consent.

GDPR is incredibly clear here, it is one of the areas picked out by the law as requiring people to be fully informed if a service -- typically a weather or navigation app -- is going to store details about their location and share them with advertisers. If this is covered in some long legal jargon and thrown in with other forms of consent, as I suspect it probably is, then GDPR has been broken.

As for the more general issue of online advertising, one only needs to look at how the Irish watchdog is investigating Google and how the ICO in London has pronounced that the industry can no longer carry on working through "opaque" technology.

The RTB industry has been warned that it cannot just keep on spraying data around without consent and without checking companies receiving data are GDPR compliant. Particularly when it comes to sensitive data (such as political views, sexuality and health) additional consent for each category is required as a separate agreement to generic information about a user.

It isn't very difficult to see that the duopoly are likely to have a case to answer here. I don't recall being asked whether it was ok for either to capture and sell data with my location to advertisers, and I certainly don't recall being asked permission for the capture of data around those special interest areas.

The terms and conditions of using their services are long and written in legal gibberish that runs counter to what GDPR calls for. ICO guidance on GDPR suggests that language simple enough for a child to understand is required, and that informed permission to be given through a specific act.

Clicking "ok" before carrying on downloading cat pictures and searching up nearest restaurants might just about suffice for general information. My lay reading of GDPR would suggest that it will not prove as legal consent for processing location or special interest data, such as politics, religion, sexuality and health.

Far too much data is being sprayed around digital advertising right now. Regular readers will recall that I predicted there would be a time of reckoning for the duopoly.

It would appear we are in the earliest stages of this panning out as the European Commission sends out questionnaires and then checks its fine notification forms to see how many zeros they have room for.

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