Two years after opening its Market Investigation into mobile browsers, the UK’s Competition and Markets Authority has released its provisional report. From the summary of provisional decision (the full report is a 600 page document!):
The independent inquiry group appointed for this market investigation has provisionally
found that a number of markets relating to browsers on mobile devices are not working
well.We have provisionally identified a number of features in the markets for mobile browsers,
browser engines and in-app browsing technology which restrict competition. Most of these
features relate to the policies implemented by Apple in the relevant markets. In particular,
we have provisionally found that various types of policies implemented by Apple are
holding back innovation from other browsers.First, Apple currently specifies that mobile browsers in the UK must use Apple’s own
underlying browser engine (WebKit), which determines what competing mobile browsers
can do on iOS. We have provisionally found that this limits the extent to which competitors
can differentiate their browsers and offer enhanced features to iOS users.Second, we have provisionally found that Apple has withheld access or has delayed giving
competing mobile browsers using its WebKit system the same level of access and
functionality as its own browser Safari enjoys, which has a negative impact on competition
and innovation.
Progressive Web Apps are mentioned as being hampered by Apple, which harms UK developers’s business:
In particular, Apple’s rules appear to be holding back a category of apps known as
‘progressive web apps’ (PWAs) that are lower cost and easier for developers to build since
they can run on any operating system. PWAs do not need to be listed on an app store and
are not subject to app store charges.…Many smaller UK app developers told us that limits on web apps are holding back their
business because they could be developing PWAs as a comparable and lower cost
alternative to developing a native app.
The CMA notes that concerns about security are entirely valid, but Apple’s belief that it alone is capable of delivering a secure browser to its users in a timely manner is utter crap (I paraphrase):
We also note that alternative browser engines have strong records on security outcomes, and more widely, that Apple’s current restriction actually prevents mobile browsers competing and innovating on security and privacy features, for example by implementing security updates more frequently than Apple’s architecture currently allows.
The full report says
4.191 Several stakeholders also submitted that when a security flaw is found in WebKit, consumers are unable to protect themselves by switching to a mobile browser based on a different browser engine and are therefore vulnerable until a fix is deployed to WebKit (which can take several weeks).
In-App Browsers (which Open Web Advocacy calls “the worst erosion of user choice you haven’t heard of“) are also discussed:
Third, we have provisionally found that on iOS, Apple limits the technology available to link
to web content from within an app, known as in-app browsing, which appears to be an
increasingly significant proportion of all browsing which takes place on mobile devices. We
have provisionally found that Apple’s restrictions limit the traffic available to challenger
browsers in this type of browsing and also limit the extent to which apps can customise
their users’ browsing experience as companies with millions of users like Meta would like
to do.
The vast payments by Google to Apple for default search on Safari/iOS harm competitiveness:
Fourth, we are concerned about revenue sharing arrangements between Google and
Apple. We have provisionally found that Apple and Google earn significant revenue when
their key rival’s mobile browser is used on iOS, reducing their financial incentives to
compete.
Both Google and Apple misuse their Android and iOS platforms to steer users away from competitors’ browsers:
Fifth, we provisionally find both Apple’s and Google’s product design choices about when,
whether and how users make certain decisions about mobile browsers, also known as
choice architecture, are making it significantly harder for users to drive competition by
actively choosing which mobile browser they use.
The full report notes that Apple’s malicious compliance tactic in EU of preposterous terms and conditions for third-party browser engines is a “further area of effectiveness risk”:
11.104 We note that multiple stakeholders submitted that the terms Apple has
attached to its proposed Web Browser Engine Entitlement (WBEE), which it has
introduced in response to the DMA obligations, have precluded them from
considering using alternative browser engines on iOS in the EU.11.105 Particular concerns could arise if Apple were to introduce:
(a) Conditions such as:
(i) requiring users of mobile browsers which use alternative browser
engines to uninstall their existing mobile browser and install a new
version of the app, creating potential friction or confusion (the ‘separate
binary’ requirement); and(ii) Apple imposing terms on browser vendors on the location of where
testing and development of mobile browser apps using alternative
browser engines should take place (for example, that testing and
development of a UK browser app using an alternative browser engine
should be done in the UK only).(b) Disproportionate security and privacy considerations.
Naturally, the CMA also had a hearing with Apple (PDF, 6 pages), in which we learned that API design is very hard:
Apple stated that making functionality within the iOS architecture available to browser vendors can be complex
and (surprise!)
Apple raised a concern that the proposed remedies would not protect or enhance competition in the market
Bang to rights! What happens now?
First, interested parties have until mid-December to respond to the provisional report. The final report is due in the first quarter of next year. But it looks as if the CMA wants to refer the matter back to itself, because while the investigation was ongoing, the Digital Markets, Competition and Consumers Act gave the CMA new powers to establish a Digital Markets Unit to investigate, enforce and, if necessary, fine anti-competitive organisations up to 10% of their annual global turnover. (Previously the CMA had to take offenders to court, and there was no guarantee of effective sanction.)
So, it’s back to investigating whether Apple and Google should be designated with Strategic Market Status (SMS), presumably with consultations and provisional reports:
We have provisionally concluded that an effective and comprehensive means of
addressing the competition concerns we have provisionally identified is to recommend to
the CMA Board that, using these new powers:(a) it prioritises commencing SMS investigations to assess whether it would be
appropriate to designate Apple and/or Google for their respective digital activities in mobile
ecosystems; and it is recommended that the scope of such SMS investigations includes
the supply of mobile browsers, browser engines and in-app browsing technology; and(b) if such designation(s) are made, it considers imposing appropriate
interventions, such as those we have considered in this report.
Such is the slow progress of law. But we’re inching forwards to freeing up the web on mobile and weakening the duopoly in the UK as well as the EU and Japan.