In response to the significant market impact that a handful of big tech companies have wielded over the past years, the EU’s Digital Markets Act (DMA) sets out new obligations for six big tech companies. They are Alphabet, Amazon, Apple, ByteDance (which owns TikTok), Meta, and Microsoft. They control core online platform services that act as gateways between consumers and the digital economy. But there are already signs that at least some of these companies might be trying to thwart the new rules.
Clock is ticking to comply with the DMA
The six companies the European Commission designated as ‘gatekeepers’ will have to comply with the new rules on 7 March. For example, Apple must unlock its operating systems to allow consumers to install alternative apps and app stores. Dominant players like WhatsApp must likewise ensure interoperability, i.e. that its users can interact with friends and family who use alternative messaging apps if they want to.
The DMA also gives more control to consumers over their personal data, as gatekeepers cannot track them anymore across services without asking for their explicit consent. For instance, Amazon will need consumers’ approval before displaying ‘sponsored’ search results on the Amazon store based on content they have viewed on Prime Video.
Doubts about compliance
Several gatekeepers have announced or begun introducing changes ahead of this date. However, what we have observed so far in our view raises serious doubts about whether gatekeepers will be in full compliance on 7 March.
Meta, Amazon and Google have, for example, started displaying pop-ups asking users to make choices about their personal data. Unfortunately, these seem to be riddled with ‘dark patterns’ or other practices prohibited by the DMA’s anticircumvention rules, apparently aiming to dissuade consumers from making use of the new freedom of choice (between a personalised and an equivalent non-personalised option) the DMA offers them.
Meta seems to employ a range of techniques designed to keep consumers in the dark about the company’s data processing. These include misleading language such as ‘use for free’ when consumers pay with their data. Data protection options are buried in a maze of settings, and the use of contrast and colours for the ‘accept’ and ‘refuse’ buttons can steer users to the response the gatekeeper wants.
Rather than using neutral language, Meta would also appear to be steering consumers to ‘confirm their account settings’ without saying they have a choice, and by showing them a ‘Manage accounts’ instead of a ‘Refuse’ button. The company also does not appear to systematically offer a less personalised but equivalent alternative to their services, as required by the DMA. This would mean consumers who refuse data sharing lose access to certain functionalities that would also work without this data.
What we have observed so far in our view raises serious doubts about whether gatekeepers will be in full compliance
Dark patterns (e.g., non-neutral button colours) seem to also be present in Amazon’s pop-ups. Furthermore, the company asks consumers to grant its services access to their personal information, but instead of using familiar service names (e.g., Prime Video, Amazon Echo, or Twitch), it uses what we consider to be vague categories such as ‘Entertainment’, ‘Amazon Device Services’, and ‘Other Amazon Services’.
Amazon also speaks at length about how it will improve its service for consumers who consent to giving up their data, rather than focussing on how it will use this data for targeted advertising. Amazon also places these important new choices required by the DMA in a standard cookie banner, when it is well known that most consumers close them quickly without paying much attention.
A risk for consumers?
Meanwhile, Apple has announced it will open its walled garden up to alternative app stores and payment options. However, the word ‘risk’ appears 22 times in its statement, suggesting an attempt to discourage consumers from opting for alternatives under the guise of online security.
If Apple negatively frames the choice to use alternative app stores…it is likely to undermine the effectiveness of these new options
Opening Apple’s ecosystem could significantly reduce what consumers pay for their apps and subscriptions. But if Apple negatively frames the choice to use alternative app stores and other services, it is likely to undermine the effectiveness of these new options and thus breach the anti-circumvention rules of the DMA.
Apple also appears to want to dissuade businesses from offering alternatives on its devices through complex certifications, restrictions and new fees that could see those businesses paying more. From what we have seen so far, Apple’s user interfaces (such as its browser choice screen) ignore recognised design principles, undermining the DMA’s contestability objective, and would then amount to non-compliance.
Business as usual?
Instead of renouncing practices that BEUC, other civil society organisations, regulators, and policymakers have all condemned countless times, several gatekeepers appear to plan to carry on ignoring the law and consumers’ rights, distorting competition and stifling innovation.
In fact, it seems that some are attempting to influence as many consumers as possible to make poor choices before the DMA obligations take effect on 7 March.
Recent adjustments that some gatekeepers have made to their pop-ups and messages demonstrate that they can change them quickly if they want to and before 7 March. We will need to wait until then to see whether gatekeepers are compliant with the DMA. If they are not compliant on that date, the Commission must act with urgency and determination to show big tech that any efforts to circumvent the law will not be tolerated.