Archive for January, 2023

Apple: we’re so great for consumers we want to block investigation that could vindicate us

Regular readers to this chucklefest will recall that I’ve been involved with briefing competition regulators in UK, US, Australia, Japan and EU about the Apple Browser Ban – Apple’s anti-competitive requirement that anything that can browse the web on iOS/iPad must use its WebKit engine. This allows Apple to stop web apps becoming as feature-rich as its iOS apps, for which it can charge a massive fee for listing in its monopoly App Store.

The UK’s Competition and Markets Authority recently announced a market investigation reference (MIR) into the markets for mobile browsers (particularly browser engines). The CMA may decide to make a MIR when it has reasonable grounds for suspecting that a feature or combination of features of a market or markets in the UK prevents, restricts, or distorts competition (PDF).

You would imagine that Apple would welcome this opportunity to be scrutinised, given that Apple told CMA (PDF) that

By integrating WebKit into iOS, Apple is able to guarantee robust user privacy protections for every browsing experience on iOS device . WebKit has also been carefully designed and optimized for use on iOS devices. This allows iOS devices to outperform competitors on web-based browsing benchmarks Mandating Apple to allow apps to use third-party rendering engines on iOS, as proposed by the IR, would break the integrated security model of iOS devices, reduce their privacy and performance, and ultimately harm competition between iOS and Android devices.

Yet despite Apple’s assertion that it is simply the best, better than all the rest, it is weirdly reluctant to see the CMA investigate it. You would assume that Apple are confident that it would be vindicated by CMA as better than anyone, anyone they’ve ever met. Yet Apple applied to the Competition Appeal Tribunal (PDF, of course), seeking

1. An Order that the MIR Decision is quashed.
2. A declaration that the MIR Decision and market investigation purportedly launched by
reference to it are invalid and of no legal effect.
In its Notice of Application, Apple also seeks interim relief in the form of a stay of the market investigation pending determination of the application.

Why would this be? I don’t know (I seem no longer to be on not-Steve’s Xmas card list). But it’s interesting to note that a CMA Market Investigation can have real teeth. It has previously forced forced the sale of airports and hospitals (gosh! A PDF) in other sectors.

FOSSpatents has a theory:

A market investigation lowers the hurdle for the CMA: it doesn’t have to prove wrongdoing, just adverse effects on competition (abbreviated as AEC, which in other antitrust jurisdictions, however, stands for “as efficient competitor”) and has greater powers to impose remedies. Otherwise a conventional antitrust investigation of Apple’s conduct would be required, and Apple would have to be shown to have abused a dominant position in the relevant market. Apple would like to deprive the CMA of its more powerful tool, and essentially argues that the CMA has deprived itself of that tool by failing to abide by the applicable statute.

It’s rumoured that Apple might be contemplating about thinking about speculating about considering opening up iOS to alternate browsers for when the EU Digital Markets Act comes into force in 2024. But for every month they delay, they earn a fortune; it’s estimated that Google pays Apple $20 Billion to be the default search engine in Safari, and the App Store earned Apple $72.3 Billion in 2020 – sums which easily pay for snazzy lawyers, iPads for influencers, salaries for Safari shills, and Kool Aid for WebKit wafflers.

(Last Updated on 2 February 2023)

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Due to annoyances in the economy (thanks, Putin, and Liz Truss) I find myself once again on the jobs market. Read my LinkTin C.V. thingie, then hire me to make your digital products more accessible, faster and full of standardsy goodness!

In March, I shall be keynoting at axe-con with a talk called Whose web is it, anyway?. It’s free.