We’re living through a moment of real potential for change. For over a decade the Web has been prevented from fairly competing. That’s changing, and we’re working without fear or favor to direct change toward a safe, open future for computing and a better Web for all.
Competition is the engine of progress and OWA is working hard to spread the word on anti-competitive practices holding the Web back, how to fix them and the Web’s incredible potential to improve consumers' lives further. By meeting with regulators, giving talks, writing countless technical papers and advocating online, we’re going to take the fight for a better Web to every corner of the globe.
We hope you’ll join us in 2024 as we continue to convert potential into reality. Speak up and demand a web that works for everyone.
It’s been an incredibly busy year, so here’s just the highlights of 2023 by region:
The European Union is a key focus of ours, not only due to its economic size, but also due to its new digital competition regulation the Digital Markets Act.
This act was passed into law on November 1st 2022. To our delight it included explicit wording prohibiting companies such as Apple from banning rival companies porting their real browsers with their own browser engines.
Specifically the following section:
In particular, each browser is built on a web browser engine, which is responsible for key browser functionality such as speed, reliability and web compatibility. When gatekeepers operate and impose web browser engines, they are in a position to determine the functionality and standards that will apply not only to their own web browsers, but also to competing web browsers and, in turn, to web software applications. Gatekeepers should therefore not use their position to require their dependent business users to use any of the services provided together with, or in support of, core platform services by the gatekeeper itself as part of the provision of services or products by those business users.
— Digital Markets Act
In addition it contains a host of clauses that will enable the Web and third parties via the Web to compete fairly on all operating systems. Specifically it has clauses that:
- Browsers must be allowed to port their own engines
- Third parties services such as browsers must be given access to operating system APIs and hardware subject to narrow scope and strictly necessary security requirements
- Operating system and browser gatekeepers will not be able to self preference their own services in a number of ways
In March we had the opportunity to present at the EU’s Digital Markets Act Workshop to express our viewpoints on this new act and how it should be implemented. We also had the opportunity to meet the DMA team in person and talk through our concerns. Since then we have extensively engaged with their team seeking to aid them in effectively applying the DMA to fix anti-competitive issues related to browsers and Web Apps.
On September 6th 2023 the European Commission designated six gatekeepers - Alphabet, Amazon, Apple, ByteDance, Meta, Microsoft under the Digital Markets Act (DMA). Under these 6 gatekeepers 22 core platform services provided by gatekeepers were designated. It is these that must comply with the rules of the DMA. These companies have 6 months to be in compliance with the act from this date.
In September, Apple hilariously tried to claim with a straight face to the EU, that it offers not one, but three distinct web browsers all coincidentally named Safari.
Apple made this attempt despite the Digital Markets Act containing specific clauses to address this exact behavior:
Article 13(1): An undertaking providing core platform services shall not segment, divide, subdivide, fragment or split those services through contractual, commercial, technical or any other means in order to circumvent the quantitative thresholds laid down in Article 3(2). No such practice of an undertaking shall prevent the Commission from designating it as a gatekeeper pursuant to Article 3(4).
Lucky for us the team at the EC dismissed this ludicrous gambit and painstakingly ripped Apple's argument to shreds. It is baffling to us why Apple's legal team is willing to sacrifice their credibility on something that has such a low chance of success.
Unfortunately they had better luck with iPadOS and were able to convince the EU that it was distinct from iOS. However, the EU has determined that iPadOS has sufficient market share and power to warrant an investigation as to whether iPadOS should be considered a gatekeeper on a standalone basis. OWA had the opportunity to respond as to why we believe that iPadOS must be designated a Gatekeeper and should not be considered separate from iOS in general.
In our own submission we argued that iPadOS is a subset of iOS and that even if it were not it, it has sufficient market power to be designated core platform service.
2024 will be an exciting year in the EU for browser and Web App competition. We are engaging closely with the regulator on a range of topics including:
- Allowing third party browsers to be ported to iOS
- Allowing browsers fair and effective access to system and hardware APIs
- Allowing Web Apps to compete fairly and effectively with their Native App counterparts
- Stopping companies from overriding users choice of default browser
- Preventing unfair self-preferencing of gatekeepers browsers
March 6th 2024 is the key date by which all gatekeepers must be in compliance, but the changes required by the act are many and there is great technical complexity that various gatekeepers can hide behind. Given that literally billions are at stake, expect fireworks and lawsuits. We will be doing our best to keep the regulator, developers and the general public informed with all the key technical details and outline a path to a future where the Web can compete fairly.
As readers may remember the CMA conducted a Market Study into Mobile Ecosystems.
The CMA found in their market investigation that:
As a result of the WebKit restriction, there is no competition in browser engines on iOS and Apple effectively dictates the features that browsers on iOS can offer (to the extent that they are governed by the browser engine as opposed to by the UI).
Importantly, due to the WebKit restriction, Apple makes decisions on whether to support features not only for its own browser, but for all browsers on iOS. This not only restricts competition (as it materially limits the potential for rival browsers to differentiate themselves from Safari on factors such as speed and functionality) but also limits the capability of all browsers on iOS devices, depriving iOS users of useful innovations they might otherwise benefit from.
Based on the findings of their Market Study in which OWA heavily consulted, the CMA decided to launch a Market Investigation Reference into Browser and Cloud Gaming.
In their reference decision they listed the following potential remedies:
- removing Apple’s restrictions on competing browser engines on iOS devices;
- mandating access to certain functionality for browsers (including supporting web apps);
- requiring Apple and Google to provide equal access to functionality through APIs for rival browsers;
- requirements that make it more straightforward for users to change the default browser within their device settings;
- choice screens to overcome the distortive effects of pre-installation; and
- requiring Apple to remove its App Store restrictions on cloud gaming services.
In April 2023 Apple won a judgment against the government in the Competition Appeal Tribunal, halting an already delayed Market Investigation Reference that included examination of Apple’s iOS browser policies.
The decision was both unexpected and disappointing. Apple hadn’t argued that its policies were fair, or that the Competition and Markets Authority (CMA) was wrong in its findings. Rather, Apple argued that the CMA hadn’t regulated fast enough after finding in June 2022 that Apple and Google’s App Store and browser policies harmed UK businesses and consumers.
This judgment put progress on real browser choice in the UK on hold for an indeterminate amount of time. The only remaining hope was an appeal through the courts that could take months or years, or that the long-proposed Digital Markets, Competition and Consumers Bill (DMCC) might make progress through Parliament without being gutted by lobbyists.
The DMCC would give the CMA’s successor statutory authority to regulate more quickly. Even if that came to pass, at least a year of delay would have been won by Apple, as the CMA’s Market Investigation was the (slow) “fast path”. Our hopes were not high.
After months of radio silence, good news arrived from the UK on two fronts.
Then, at the end of the month, we learned that the CMA’s appeal to overturn the April judgment had succeeded, with the caveat that Apple could still appeal the loss to the UK’s Supreme Court. The findings from the Court of Appeal were nothing short of excoriating, with the Court rebuking the Competition Appeal Tribunal for having lost sight of the law’s goals to protect businesses and consumers.
In December, Apple declined to appeal the November finding by the three week deadline, ensuring that the CMA’s Market Investigation will restart in January from where it was frozen in April.
Meanwhile, the DMCC Bill has progressed in the House of Lords without incident, setting the stage for a beefed up UK digital regulator in 2024 with expanded powers to intervene in unfair browser competition.
In April 2022, the Headquarters for Digital Market Competition published a report where they recommend reversing Apple’s ban on rival browser engines and allowing third party browser vendors to port their real browsers to iOS. OWA heavily consulted with the HDMC on the topic of browser and web app competition, see this report for our detailed viewpoints.
Then in February 2023, the Japan Fair Trade Commission (JFTC) published an exhaustive report examining the mobile app and browser ecosystem. The report summary finds that Apple and Google have an effective duopoly over the mobile market, and that (contra Apple’s claims) there’s little pressure on App Stores from Web Apps, in part, due to suppression of key features via browser engine policy and prevention of discovery of Web Apps within App Stores.
And just this week the Japanese government is preparing to move legislation to give the JFTC powers to directly intervene in mobile OSes. The new legislation will have 4 main priorities:
- App Stores and Payments
- Operating Systems
OWA will continue to engage with the JFTC and the HDMC to ensure that browsers and Web Apps can compete effectively and fairly.
Last year the Competition & Consumer Commission (ACCC) published a report outlining competition issues in digital markets. OWA is heavily quoted in the report. The report contains a number of considered remedies including:
The code of conduct for mobile OS services could require Designated Digital Platforms to allow third-party browser engines to be used on their mobile OS. This could allow third-party providers of browsers and web apps to compete on their merits.
We also consider that the additional competition measures should include the ability to provide third-party providers of apps and services with reasonable and equivalent access to hardware, software and functionality through their mobile OS.
We also had the opportunity to meet with the ACCC, and brief them in person
In December, promising legislative action has finally emerged from the ACCC’s inquiry. The laws will be based on the ACCC recommendations in their 5th report. It specifically calls for meaningful browser choice, including engine competition, which OWA believes to be critical for the health of the web.
Korea, Brazil, India
In July, the Indian Parliament recommended the introduction of an ex-ante regime through a new ‘Digital Competition Act’ (DCA), to ensure a fair and transparent digital ecosystem in India.
In September, Brazil announced Bill 2768, a new law related to improving digital competition and interoperability.
In December, the Korea Fair Trade Commission (“KFTC”) announced its proposal to enact the “Platform Competition Promotion Act” (“PCPA”) for ex-ante regulation of platforms by designating “dominant platform operators”.
2024: A Big Year for Browser Competition
Even if nothing happens beyond the already locked-in statutory and process deadlines in the EU and the UK, 2024 is shaping up to be the biggest year for digital competition regulation in a generation.
On January 22nd, the UK’s House of Lords is set to bring the amended Digital Markets, Competition & Consumers Bill to Committee stage, one of the final steps before the Bill becomes an Act. OWA understands the quick progress of the DMCC in recent months to indicate high potential for a competent regulator on the job with expanded powers and a mandate to act swiftly. While it will take months beyond Bill passage for the proposed Digital Markets Unit (DMU) to be stood up, OWA is excited to see both the expansion of capacity to regulate questions related to browser choice, as well as the strong support in the legislative process for redressing the market distortions of the status quo.
Next, the UK’s CMA will regain its power to continue a Market Investigation into Browsers and Cloud Gaming beginning January 24th. This restart of the mothballed investigation will once again begin the clock ticking down to intervention by the CMA using statutory powers it already has, with a possible outcome mandating true browser engine choice on iOS. Such a ruling would be a sea change, stands to bring the UK into alignment with emerging EU regulation, and will let the Web truly compete with native apps.
On March 6th, 2024 the 6-month countdown from the EU’s Digital Markets Act (DMA) designation decisions will conclude, requiring that Apple, Alphabet/Google, Amazon, ByteDance, Meta, and Microsoft to be in compliance of the terms of the DMA.
OWA anticipates that the plain language of the DMA will compel true browser choice and an end to Apple’s ban on competing browsers, along with a pile of other improvements to browser competition across Android and Windows. The penalties for non-compliance are severe, and so we remain hopeful that rumors of browser ports from Chromium and Gecko will become real products early next year. Where competitors aren’t able to bring their best products to designated OSes, OWA will continue to facilitate information sharing between all parties to ensure that the lines are clear and that compliance is toothsome.
If nothing else were to happen in 2024, OWA’s docket would be full. Each regulator (empowered by new legislation) that opens investigations into browsers, web apps and digital competition involves hundreds of hours of preparation for briefings to highlight issues that impact consumers, competitors and web developers, and as the EU and UK move into implementation, the workload will only increase.
In addition to OWA’s continued direct advocacy toward browser and OS vendors, we have remained in constant contact with regulators around the world, responding to dozens of requests for information and briefing this year alone. This behind-the-scenes work only occasionally becomes public, but it’s the in-the-weeds problem-description and guidance-giving that changes the agenda and has enabled so many regulators to emphasize the importance to consumers of effective browser and Web App competition.
It’s only through the generous support of donors and volunteers that we’re able to continue this work, and we hope you’ll get involved to help us continue to shape the future of digital competition. We would like to say a special thank you to particularly generous donations from startsmall and store.app.
Together we can fix these anti-competitive issues and allow the Web to fairly compete to its full potential.
Happy New Year from everyone at Open Web Advocacy!