The Weekly Update - 16th September 2022
I started to try and put some news stories together for this week’s update but everything has ground to such a halt during the period of national mourning that there is very little to report. I wrote a piece for subscribers this week about the protests against the accession but today I thought it might be more useful to instead cover some important recent cases from Europe.
Google Loses Big
Competition in the tech sector is one of the biggest challenges for regulators and companies alike. Regulators try to ensure that monopolies don’t develop and that consumers are protected whilst companies like Apple and Google try to comply with competition law and avoid sanctions.
Federal and state regulators in the U.S. are beginning to make strides but it is the European Commission that leads the way under Margrethe Vestager, the Commissioner for Competition. Previously the Commission had fined Google €4.34 billion (£3.8 billion) because the company imposed unlawful restrictions on Android manufacturers and mobile network operators in a bid to promote its own search engine. Now, this week, the General Court largely upheld that decision with only a 5% reduction on the fine.
Google can appeal to the European Court of Justice but don’t be fooled, this is a major win for the Commission. As Vestager herself said:
“This, of course, is really good. Now, we have the second Google judgment and for us, it is really important as it backs our enforcement efforts.”
In competition law the legal argument often centres around what the relevant market for a product is. Regulators will try and show a small relevant market to prove the dominant position of a company while companies want to prove they are nothing more than one fish in a large pond.
An important part of this ruling was that Android’s operating system and Apple’s iOS are not in the same relevant market. That might seem odd at first glance because most people will have either an iPhone or an Android but the two operating systems are quite different. Android is based on a more open-source licence that third-party manufacturer’s can use whereas iOS is non-licensable. The court even agreed that the indirect pressure that iOS creates on this market in general is not relevant to Google’s dominant market position in this area.
As we move forward that sort of reasoning could become relevant again as regulators investigate other issues such as Apple’s position within the market for music streaming.
Islamic State Brides
It is also a busy period for the European Court of Human Rights. This week France was told that its decision not to repatriate two women who had traveled to Syria to join Islamic State was a violation of Article 3 § 2 of Protocol No. 4: “no one shall be deprived of the right to enter the territory of the State of which he is a national”.
The women also now have children who are also detained in camps in Northern Syria. It was argued by the family that this was a form of inhumane and degrading treatment and that there was a violation of their right to respect for family life.
Before the decision was handed down, France had already made a move to repatriate a number of nationals in July. This judgment from the court could speed that process along for those who remain in Syria.
Decision Expected for Parents of Madeleine McCann
Next Tuesday we will find out if Kate and Gerry McCann (the parents of Madeleine McCann) have won their case before the European Court of Human Rights.
The issue began in 2008 (a year after Madeleine disappeared while on holiday in Portugal) when the lead investigator in the case, Goncalo Amaral, published a book that argued the parents were, in fact, behind the disappearance.
The McCanns sued for libel and the case made it to Portugal’s highest court which held that Amaral’s right to freedom of expression should be respected. Since then the parents have brought the case before the European Court of Human Rights arguing that the publication is a breach of their right to privacy and impinges on their right to a presumption of innocence.
The line between Article 8 (right to privacy and family life) and Article 10 (freedom of expression) of the Convention has always been a difficult one to tread and it will be fascinating to read the judgment next week.