Privacy International granted permission to intervene in landmark Meta/GIPHY merger review

Global NGO Privacy International, represented by Hausfeld, was granted permission by the Competition Appeal Tribunal (CAT) to intervene in the application brought by Meta Platforms, Inc. (Meta) pursuant to s. 120 of the Enterprise Act 2002 for review of the Competition and Markets Authority (CMA)’s decision that Meta should divest itself of GIPHY, Inc (GIPHY), which Meta acquired in May 2020.

Privacy International (PI) previously participated in Phase 1 of the CMA’s review of the Facebook (now Meta)/GIPHY merger. That submission focused on Meta’s ownership and use of data as a factor in the competitive assessment of the merger. The findings of the CMA in its final decision, particularly as to the potential ways in which Meta might, post-merger, foreclose other social media platforms, are consistent with the concerns voiced by PI.  

Meta is challenging the CMA’s final decision as unlawful and falling to be quashed on various grounds, including the appropriateness and proportionality of the divestiture remedy ordered by the CMA. 

The intervention

PI recently applied to intervene in the proceedings in support of the CMA. It argued that, as a leading digital rights organisation whose objective is to promote consumers’ rights and defend their privacy, it has a substantial interest in the outcome of Meta’s challenge and the expertise necessary to assist the CAT to determine the issues in the case. In particular, PI intends to assist the CAT as to, amongst other things, the reasons why a divestiture remedy is proportionate and why the alternative remedies proposed by Meta are insufficient.

Its importance

The case is also the first before the CAT concerning a decision taken under the CMA’s new (2021) Merger Assessment Guidelines, and its outcome may have wider implications for the interpretation of the Guidelines and the future regulation of mergers in digital markets.

At a CMC on 15 February 2022, the CAT granted PI permission to intervene on behalf of the CMA, and granted the Application Developers Alliance and the Computer & Communications Industry Association permission to do so in support of Meta. In doing so, the CAT acknowledged the level of global concern and the arguable novelty of the points that are going to be in issue in the case.

Privacy International's submission related to Phase 1 of the CMA Review

End notes

Privacy International (PI) researches and advocates globally against corporate and government abuses of data and technology. Within its range of activities, PI investigates how individuals’ personal data is generated online and exploited, and how it can be protected through legal and technological frameworks. It has an established track record of effective engagement with competition regulators around the world on issues that concern the intersection of data privacy and competition law, including through its intervention before the European Commission in the context of the Google/Fitbit merger (see here – Hausfeld was also instructed in relation to that intervention).

The full case reference is 1429/4/12/21 Meta Platforms, Inc. v Competition and Markets Authority. The Hausfeld team consists of Wessen Jazrawi, Anna Morfey and Ginevra Bicciolo; the Counsel team consists of Sarah Love and Sophie Bird of Brick Court Chambers.