New rules and rulings can upend the business models that have dominated Web 2.0.
Since the dawn of the digital ad, Big Tech and their walled gardens have cast a long shadow over every aspect of the industry.
Despite promises otherwise, marketers face persistent challenges in terms of data ownership, transparency, and the ability to do necessary things like verify campaign results. Thanks to their dominance, Google, Meta, and Amazon will continue to attract the lion’s share of the advertiser’s budget. Over the next few years, they will account for 83% of global digital advertising revenue.
Regulators across the globe are doing all they can to stop the dominance, of course, but Big Tech shows no sign of going down without a fight. While 2023 was a year for antitrust suits filed and in some cases lost, 2024 will be a year when key decisions will be made and appealed. It will also be a year when the impact of sweeping regulations in the EU may be felt.
Canada Online News Act
In the summer of 2023, Canada passed the Online News Act, which requires dominant platforms to compensate news organizations when their content is made available in search results and social media.
A game of brinkmanship ensued, with Meta announcing that as of August 1, it would block news content from Facebook and Instagram feeds for all Canadian users. A few years back, Australia passed a similar law, although Google and Meta quickly made a deal with the Australian government to keep news on their platforms.
While Canada and Google reached a deal in late November to keep news stories in search results, and for Google to pay $72 million (C$100 million) annually to Canadian news publishers, no such agreement has been reached with Meta. Nor is it likely, as the news ban has had very little impact on Facebook’s traffic.
United States
Google has been in the crosshairs of regulators all year, beginning with the news in January 2023 that the FTC filed a suit against the company over its digital ad tech monopoly. The case, which went to trial in September, is ongoing and it’s anyone’s guess how it will turn out. The presiding judge, Amit Mehta of the U.S. District Court for the District of Columbia, has said “I have no idea what I’m going to do.” He set closing arguments for early May.
Also, as previously reported by AdMonsters, a San Francisco jury sided with Epic Games, ruling that Google violated antitrust laws by unfairly stifling competition within Google Play. The verdict compels Google to allow app stores other than Google Play on Android devices. Google made good on its vow to appeal, and that case will head to the San Francisco-based 9th U.S. Circuit Court of Appeals sometime in 2024.
Both these cases can turn 2024 into a monumental year for the entire industry. Depending on the outcomes, we could be headed for major changes in the advertising industry, including increased competition and a reduction in ad costs (along with headaches for smaller publishers that appreciate the simplicity of the Google ecosystem). It can also lead to a new era of government regulations and oversight, which the industry has assiduously tried to avoid.
Amazon
Financially, 2024 will be a banner year for Amazon’s advertising business, reports DoubleVerify. Amazon more or less invented the concept of retail media and it has become a favored tactic of marketers everywhere, especially as the pool of third-party data and cookies diminishes. Per DoubleVerify, most of the marketers they surveyed said they planned to spend their budgets primarily on Amazon Advertising.
Amazon will need that revenue to beef up its legal team. On September 26, US regulators and 17 states filed an antitrust lawsuit against Amazon. The federal government and a bipartisan group of state attorneys argue that Amazon is a monopolist that stifles its competitors, offering unfair prices to sellers and consumers. More specifically, Amazon allegedly punishes sellers for offering lower prices and pressures them into paying for Amazon’s delivery network.
“Amazon is a monopolist and it is exploiting its monopolies in ways that leave shoppers and sellers paying more for worse service,” said FTC Chair Lina Khan. “In a competitive world, a monopoly hiking prices and degrading service would open up rivals and potential rivals to … grow and compete. But Amazon’s unlawful monopolistic strategy has closed off that possibility, and the public is paying dearly.”
The suit, which is the result of a lengthy investigation spanning many years, asks the court to issue a permanent injunction.
Meta
In late November, Meta filed a lawsuit that challenges the constitutionality of the FTC; the complaint literally says, “Meta respectfully requests that this Court declare that certain fundamental aspects of the Commission’s structure violate the U.S. Constitution and that these violations render unlawful the FTC Proceeding against Meta.”
The background: In May 2023, the FTC accused Meta of violating the privacy settlement it had reached with the company back in 2020. That settlement included a $5 billion fine and required Meta to implement a comprehensive privacy program to protect user information. It also mandated that Facebook conduct privacy reviews of new or modified products, services, or practices before implementing them and documenting how those risks could be mitigated.
In its May action, the FTC accused Meta of misleading parents about how much control they have over who their children contact within the Messenger Kids app, among other issues. As a result, the FTC has reopened the 2020 settlement and proposes changes that will prevent Meta and its platforms from benefiting financially from any data it collects from people aged 18 or under.
According to the AP, Meta could prevail, writing “Meta’s complaint came after the U.S. Supreme Court’s conservative majority on Wednesday seemed open to a challenge to how the Securities and Exchange Commission fights fraud in a case that could have far-reaching effects on other regulatory agencies.” If the analogy holds, Meta may be able to request a jury, not the FTC, settle the question of any privacy violations.
Europe
Meta
Meta’s 2023 privacy woes across the pond began in early January with the EU fining it $412 million for data collection violations. According to the regulator, blanket terms of service — such as those that apply to U.S. citizens — don’t fly under GDPR. On August 1, Meta announced it is changing the legal basis for processing personal data for behavioral targeting, transitioning from “contractual necessity” to “consent.”
A few months later, Meta announced a “Pay for Your Rights” that would allow EU citizens to pay $10 a month to opt out of data collection for behavioral targeting. The EU was far from impressed, and in November, the European Data Protection Board (EDPB) issued an urgent binding decision to ban Meta’s behavioral advertising practices in the European Economic Area (EEA). Violating the ban can result in fines that equal 4% of its global revenue.
Meta says it’s not backing down and that the fight will continue.
Digital Markets Act (DMA)
While Meta fiddles with its legal basis for collecting data, it, along with five other walled gardens faces a new challenge to their hegemony: the EU’s Digital Markets Act (DMA) — not to be confused with the EU’s Digital Services Act (DSA) — which went into effect in May 2023. In September, the EU designated six companies as “gatekeepers” — aka any company that has a significant impact on the internal market, operates a core platform service, and serves as an important gateway for business users to reach end users.
The six named gatekeepers are Alphabet, Amazon, Apple, Meta, Microsoft, and ByteDance, spanning 22 platforms. The DMA requires these gatekeepers to comply with strict competition regulations, such as allowing end users to access and use content, subscriptions, features, or other items through their core platform services by using the software application of a third party. This is pretty much what the San Francisco jury said when it ruled that Google must allow other app stores on Android devices. To date, the gatekeepers haven’t said much about their designations, other than quibbling about some individual platforms and whether they meet the criteria.
It’s hard to say if 2024 will be the year when the garden walls will tumble down. We can, however, predict that Big Tech will continue to lawyer up and appeal all moves that take direct aim at their profitable business models.