Meta faces the music as CMA orders it to sell GIPHY
Our client, Privacy International, was pleased to learn of the decision by the Competition and Markets Authority (CMA) that Meta Platforms, Inc. (Meta)’s takeover of GIPHY, Inc (GIPHY) 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 – in what is the first merger rejection in Big Tech ever - Meta to divest of GIPHY which Meta has now confirmed it will.
Reconfirming its original Phase 2 decision, the CMA found that the deal could allow Meta to limit other social media platforms’ access to GIFs, making those sites less attractive to users and less competitive. It also found the deal has removed GIPHY as a potential competitor in the UK display advertising market, preventing UK businesses from benefiting from innovation.
The CMA had published its original Phase 2 decision on this case in November 2021. Meta had subsequently appealed that decision to the Competition Appeal Tribunal (CAT). Global NGO Privacy International, represented by Hausfeld intervened in the appeal proceedings in support of the CMA.
In June 2022, the 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. Hausfeld’s update and full commentary on the CAT judgment are here and here.
The second decision
After an expedited 3-month review, the CMA issued a second decision, confirming its previous findings. This decision has been accepted as final by Meta who will now proceed to sell GIPHY to an approved buyer.
This outcome is an important milestone for competition in digital markets and demonstrates the CMA’s willingness to challenge acquisitions on the basis of dynamic theories of harm, in keeping with the spirit of the new proposed UK merger control regime. Big Tech should take note.