Approximately one and a half year ago, Google announced the so-called “Privacy Sandbox” – a group of proposals about rebuilding advertising – which, inter alia, entails the removal of third party cookies (“3PC”) from the Chrome browser. 3PC are used to track browsers across websites, which is useful for remarketing as well as building profiles for users. However, while 3PC might be effective, it can be asserted that 3PC is privacy invasive (which is said to be the reason for the proposal). The proposal has gained a lot of attention. For example, the Competition and Markets Authority in the UK has opened an investigation into the proposal. The investigation will assess whether the Privacy Sandbox is compatible with competition policy. Also, state antitrust watchdogs in the US are targeting the Privacy Sandbox, as a part of a major lawsuit filed last year. “Google is trying to hide its true intentions behind a pretext of privacy”, say Attorney Generals.
For the purpose of this article, the Privacy Sandbox provides a new non privacy invasive way of retargeting users. Essentially, targeting data will be stored on the browser and not, as today, sent back to ad servers. With other words, all the data that today might be stored in 3PC, and on ad tech company servers, will be stored and processed in the browser, and it will not be possible to link that information to anything else about a specific individual. This is intended to ensure that data stays on the user’s device in a way that is privacy compliant. Also, the browser will assign the person to an interest group, for example “an Air Jordan fan”-group, and therefore it will not be possible to link the information to the person in question.
Even though the Privacy Sandbox may be positive from a privacy perspective, it has been questioned from a competition policy perspective. The main concern is that the Privacy Sandbox is controlled by Google – who so to say is pitcher, batter, and umpire, all at the same time – why advertising spend, as a result of the Privacy Sandbox, could become even more concentrated on Google’s ecosystem at the expense of its competitors.
Importantly, the Privacy Sandbox is in its infancy, and is thus still in its testing and experimentation phase. One can, however, already at this point conclude that the Privacy Sandbox provides a good example on the sometimes problematic intersection of privacy law and competition policy.
Additionally, it is not a bold statement to say that the Privacy Sandbox and its potential effects on marketing businesses will be discussed for quite some time. So – stay tuned!