Competition, monopolies and the Enterprise Act.
Content recommendation has been big business recently with some relatively recent entrants to the market now commanding millions in marketing budgets from all kinds of brands and their content marketing. “You might also like” has become a well known heading for one of many engines that publishers have installed on virtually every site. Obviously this shift in budgets has attracted attention – unusually, Google were not part of the advance party and are still working on their own solution – Matched Content.
Let me paint a picture
In recent weeks – in both Europe and Australia I’ve heard the same thing from a number of parties so I’m going to paint a picture and perhaps you’ll recognise it?
Let’s say there was a company controlling a significant portion of advertising who had a recommendation engine.
And let’s say that this company started to tell publishers around the world: if you don’t install our recommendation engine on your site then you won’t be receiving any more ad bookings from the other companies in our group.
What would happen then?
It’s an interesting theoretical situation isn’t it? A real ramping up of global tech wars – a full scale war for the valuable spots on the page and the ability to cookie users & monitor their behaviour.
Here’s how it might go
I don’t know everyone’s competition rules but assuming that the company making the threat and agreeing the arrangement could be sufficiently linked to the UK:
First, I would read this break down from Slaughter & May, a top UK law firm, on UK Competition Rules.
Now consider the Competition Act 1998 “prohibits any agreement or concerted practice which has the object or effect of preventing, restricting or distorting competition … companies that have breached Chapter 1 are liable to fines of up to a maximum level of 10% of worldwide turnover and disqualification from serving as a director”
Now consider the Enterprise Act 2002 – because this would effect the individuals sending emails, having meetings and making arrangements – both on the tech platform side and the publisher – “participation by an individual in price-fixing, bid-rigging or market sharing or limitation of output or supply may lead to the imposition of a prison sentence of up to 5 years’ duration, unlimited fines or both”
So if this situation existed, what would my advice be?
I recognise this picture and I’ve been asked to make arrangements like this – can I go to prison?
I recognise this picture and I’ve been asked to make arrangements like this – can I go to prison, I work for a publisher?