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Court: Competition Appeal Tribunal (CAT)

Case No. 1429/4/12/21

Status: Closed

Update: In June 2022, the Competition Appeals Tribunal (CAT) upheld the CMA’s decision on five of Meta’s six grounds of appeal, noting it had “no hesitation” in concluding the CMA’s finding that the merger substantially reduced dynamic competition was lawful. The CAT however found in Meta’s favour on a procedural ground relating to redactions in the decision concerning third-party confidential information. In light of that finding, in July 2022 the CMA’s decision was quashed and the case remitted to the CMA for reconsideration. In October 2022, the CMA reconfirmed its original Phase 2 decision and found that the acquisition could reduce competition in the global market for social media services and in the UK market for display advertising. On that basis it has ordered Meta to divest of GIPHY, which Meta has now confirmed it will. The CMA decision of October 2022, which is the first merger rejection in Big Tech ever, follows PI’s submissions and recognises the role of data in leveraging Meta’s dominance.

On 5 January 2022, Meta Platforms, Inc. (formerly known as Facebook, Inc.) challenged the decision of the UK Competition and Markets Authority (CMA) to require Meta to divest itself of GIPHY before the Competition Appeal Tribunal (CAT) .

Meta, the largest provider of social media sites and display advertising in the UK, acquired GIPHY, the largest provider of GIFs. GIPHY is a searchable database for Graphic Interchange Format (‘GIF’) files,  stickers, emojis, text, videos and Arcade (remixable video games).

In its report of 30 November 2021 the CMA found that the completed merger between Meta and GIPHY will give rise to a substantial lessening of competition.

Meta’s acquisition of GIPHY raises a number of significant competition and privacy concerns, which Privacy International spelled out in its submission to the CMA's phase one investigation of the merger.

In particular, the merger would further increase Meta’s dominance in digital markets and Meta could benefit from GIPHY’s data collection practices and integration with other services. Further, with the aquisition of GIPHY, Meta could limit the ability of rival apps to compete with Meta in social media and could demand individuals’ data as a condition for rival companies to use GIPHY.

Following Meta's challenge of the CMA's decision, PI was granted permission to intervene in this case, one of the first successful applications to intervene before the CAT brought by a charitable or campaigning organisation.

In our intervention we focused on:

• how GIPHY is integrated into other applications and platforms, and the effect this has on GIPHY’s ability to collect user data;

• Meta’s ability and incentive to use data foreclosure as a tool for disadvantaging its rivals;

• the significant harms that could result to consumers as a result of Meta’s data foreclosure of its rivals; and

• why the remedies proposed by Meta are insufficient to address the concerns raised by the merger.

We are happy to be working with Hausfeld & Co LLP, Sarah Love and Sophie Bird of Brick Court Chambers, who are representing and providing support to PI with regard to this intervention before the CAT.

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