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Policy / DCN perspectives on policy, law, and legislative news surrounding digital content

The cracks in Google’s adtech façade are starting to show

September 22, 2022 | By Jason Kint, CEO – DCN @jason_kint

Behind the scenes, Google is flailing – despite its predictably tight control over industry narratives. 

The underlying shockwaves stem from an increasingly widespread understanding of Google’s dominant role over the entire adtech supply chain. Those who have sought to unpack and explain the complexities of the company’s hold on the industry can thank a senior Google employee for providing this apt analogy in discovery: They described Google’s role in adtech as “if Goldman or Citibank owned the New York Stock Exchange.” Now that’s something a jurist can understand. 

The escalation of enforcement 

In the last sixty days, Google has floated three different test balloons in an attempt to head off the intensifying scrutiny: 

  1. The Wall Street Journal reported Google has offered to split off part of its adtech business in an effort to head off the Department of Justice’s filing of a landmark lawsuit – expected this month according to a Bloomberg report. The only problem: Google’s offer was to split the adtech business and put it under a different part of parent Alphabet. To extend the previous analogy, placing the NYSE in a different division of Goldman Sachs would not solve the inherent issue. Hard pass.  
  2. Google announced a new feature with the innocuous title of “Confirming Gross Revenue.” They’ve pitched it to advertisers and publishers – and little doubt to enforcers, too – as providing transparency in a “privacy-safe way” as to the money flow in the advertising supply chain. The problem with it is that Google will avoid having to provide insights into auctions, transactional flow, or any real detail as to how Google’s decisions determine revenues across the market. Google’s press announcement crows that “Display & Video 360 is onboard as an early tester.” That sort of says it all, since Google owns DV360.  
  3. Google once again delayed its deprecation of third-party cookies, something that they’ve been dragging their feet on for nearly three years. From the very beginning, Google has used misleading Google-authored research of the Google-dominated supply and data system to suggest their delays are only due to their interests in not harming publishers. What is true is that a wrong move by Google (hello Floc, hello Topics) can very well continue the ongoing harm to premium publishers by treating every website as an interchangeable commodity. If there’s any chance that a move will hurt Google’s ad business, it won’t happen. 

Litigation, legislation, and learning 

So why all the flailing? To illuminate what’s going on underneath the surface, let’s take a roll call. Fifteen U.S. states, the U.S. Department of Justice, the E.U. Competition Commission, the U.K. Competition and Markets Authority … Netherlands … France … well, suffice it to say that the list is long (and growing) for investigations, lawsuits, and enforcement action underway – all of which are probing Google’s advertising tech business(es).  

The E.U. has been particularly active by fining Google more than $8 billion across three decisions. It also recently passed its new landmark gatekeeper law, the Digital Markets Act, and is ramping up enforcement of its landmark privacy law, the GDPR, by pressing Google-friendly Irish regulators. 

Importantly, enforcers and litigators are studying and learning from each other across issues of competition and data privacy worldwide. And they’re keeping especially close eyes on the Texas-led lawsuit which now counts 15 bipartisan state attorneys general as plaintiffs along with countless private plaintiffs. They certainly won’t have overlooked Google losing much of its arguments last week in attempting to dismiss this case. This blow came at the hands of a SDNY Court which very much seems to understand Google’s business. And that’s a huge problem for Google. 

Full court press 

Although “Jedi Blue” received the most press attention, due to the allegations of Google colluding with Facebook, there are a range of other very serious allegations which the Court has now given the green light for further discovery and trial. And, significantly, they are readily explainable to a jury. Two foremost allegations are the tying of Google’s adtech services and the manipulation of its auctions.  

What if I told you Google required the use of its ad server in order to receive the benefits of Google’s market-leading ad exchange and the fast-growing advertising demand dollars flowing through it?  Some might call this “tying,” which – if proven – is illegal.  Note that Google had about 50% of the ad server market when it acquired DoubleClick (DFP). It has since steadily increased that stake to claim nearly 99% of large publishers. Please allow me to quote the Court:  

 “The States plausibly allege that Google used its monopoly power in AdX to actually coerce publishers into licensing a separate and distinct product, Google’s DFP ad server, and that Google’s actions had anticompetitive effects in both markets, affecting a substantial amount of interstate commerce.” 

Or what if I told you Google had paid its publisher clients based on the third-highest price in an auction while collecting on the second-highest price with the determination it would re-route the variance into more advertising demand for its own services?  Some might call this, “market manipulation,” which – if proven – may well have been an illegal way to protect its monopoly. As the Court again summarized Google’s project “Bell”:  

“In other words, Bell penalized publishers who did not grant AdX preferential access by paying them based upon the third-place bid rather than a second-place bid, while using the difference to increase the bids made to publishers who allowed preferential access.” 

In fact, the only count which was dismissed in the lawsuit is the infamous “Jedi Blue” allegation. Despite Google anchoring its press spin on this win, it’s this single dismissal – one that befuddled many legal experts watching the case. I wager this one will resurface again as the E.U. and U.K. have already announced their own investigations. Also, the “Jedi Blue” allegations are included in a private lawsuit against Facebook that has already been given the green light in the northern district of California. Each of these efforts builds on the others and the subsequent learnings can only aid the U.S. Department of Justice in its work.  

Antitrust is in the air 

It was rightly said nearly three years ago that antitrust enforcement will take significant time. The wheels of justice do indeed turn slowly. Attempting to propose solutions before the investigations and allegations landed would be premature, but Google’s efforts to settle these cases shows they are nervous. And Google’s efforts to manipulate the outcome may be the most transparent thing about its business.  

The reality is many of the charges against Google have now been found plausible and will proceed into deeper discovery just as many other regulators and legislatures attempt to curb its power. Make no mistake, Google is stumbling in a way we’ve never seen in its two decades. Of course, the company will look to proactively lay out solutions for all of us. But we all see through this. No one should settle for anything less than a return to competition and the rebalancing of bargaining power that comes with it.