France’s competition regulator, the Autorité de la concurrence, this morning announced it is fining Apple €150 million over the implementation of its App Tracking Transparency (ATT) policy on iOS devices between April 2021 and July 2023.
The regulator says the design of ATT created an overly complicated consumer journey, harming both consumers and app publishers, particularly smaller app publishers. Apple also appeared to apply different rules to its own services compared with third-party apps, handing itself a competitive advantage.
“Neither necessary nor proportionate”
ATT, which went live in 2021, requires all third-party apps distributed via Apple’s App Store to ask for explicit permission in order to access Apple’s Identifier for Advertisers (IDFA), an advertising ID which can be used for tracking users across different apps, powering targeting and measurement. It was positioned as a pro-privacy move by Apple, and the mandatory text which publishers had to display on the opt-in screen certainly didn’t seem designed to encourage opt-ins.
An example of the ATT consent notification.
While app owners expressed concerns about the impact on their businesses and their ability to monetise their products, some argued that Apple’s move was designed to benefit its own business. If ATT made in-app advertising less effective, it could move more ad spend towards Apple’s App Store ad placements. Or if apps suddenly found themselves unable to monetise effectively through advertising, they might prioritise in-app purchases instead, where Apple takes a cut.
The Autorité de la concurrence, however, says that the stated aim of ATT — to protect consumer privacy — is valid, and its statement doesn’t talk about ATT driving more money into App Store ads or in-app purchases. The French regulator, rather, says the design of ATT created unnecessary complexity, thereby causing disproportionate harm to app publishers.
A key issue is that the mandatory notice which publishers have to display under ATT is not sufficient to collect valid user consent for all data collection under French data laws. Publishers therefore have to show multiple consent screens to users in order to meet legal requirements for valid consent collection.
This not only complicates things for users, it also creates an asymmetry, according to the regulator. To refuse data collection, a user only has to opt out once, whereas to accept it, they have to say so multiple times. This, the regulator says, prohibits informed consent collection, which ATT is supposed to promote.
A further issue highlighted by the regulator is that Apple doesn’t apply the same rules to its own apps. The Autorité says it “noted an asymmetry in the processing between that which Apple reserved for itself and that which it applied to publishers […] indeed, while the latter had to obtain double consent from users for tracking operations on third-party sites and applications, Apple did not request consent from users for its own applications (until the implementation of iOS 15).”
Benefiting the tech giants
Given Apple’s power in the app market, the regulator sees these moves as an abuse of its power, artificially distorting the market.
The Autorité pointed out that ATT had a particularly harsh impact on smaller publishers. Larger companies, in particular the international tech giants, have access to large stores of data, which the regulator says meant they were better able to weather the storms caused by ATT. Indeed these larger players may have ultimately benefitted, as they were able to offer IDFA-free solutions which smaller competitors could not.
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