Apple appears to have misled the UK's Competition and Markets Authority (CMA) in a regulatory filing that attempts to downplay competition concerns, according to Open Web Advocacy (OWA). OWA, a web technology lobbying group, flagged the alleged misstatement on 4 September document [PDF] filed by Apple last month in conjunction with the CMA's competition inquiry into the mobile browser and cloud gaming markets.
In footnote 142 on page 47, Apple says the CMA's analysis of the mobile browser market appears "to rely on an OWA report concerning an alleged 'dark pattern' involving the use of different UIs in order to preference Safari is set as the default browser (paragraph 3.48) by not displaying the default browser setting in the Settings app’s Safari tab where the default browser is Safari."
This gets to the point of the UK inquiry, whether Apple has been favoring its own Safari by making it unfairly difficult to choose a rival mobile browser as the device default. According to Apple, OWA's claims about deceptive default browser settings are wrong. "This is not correct," Apple insists.[1] "The default browser app setting in the Safari tab is clearly visible when the user has set Safari as the default."
The problem with this statement is that the "alleged 'dark pattern'" has been documented by multiple sources, including the CMA. This behavior has been recorded in screenshots and documented on video as of 27 March 2024. "What Apple could, and should have said, is that 'This is no longer correct, as we fixed it in iOS 17.x,' " said OWA. "Instead they appear to have bafflingly, chosen to mislead the regulator about the existence of the issue entirely."
OWA notes that it is unclear when Apple remediated the self-preferencing default browser behavior in iOS because the company did not mention the revision in its release notes. But the fix was pointed out by OWA in a 21 July post on Apple's EU DMA compliance.
Apple, which seldom agrees to respond to requests for comment, remains unresponsive to this one, too. OWA allows for the fact that Apple's attorneys may simply be unaware of the facts. "Ultimately, what makes this situation egregious is that this is not some off-the-cuff remark in a verbal setting or a carefully constructed non-statement, it is a direct denial of specifically alleged past anti-competitive behavior presented in a formal (and presumably carefully reviewed) response by a multi-trillion-dollar organization to an ongoing investigation conducted by a regulator," the group said. "This can have serious consequences."
The OWA points to the CMA's guidance about providing false information, which states it is "a criminal offense punishable by fine and/or imprisonment to provide false or misleading information…"
In its defense, Apple could claim it was simply addressing Safari's present behavior and making no statement about the past or the accuracy of allegations made at a prior date. Whether that omission could be construed as an attempt to mislead the CMA is a question only the CMA can answer.
An interim decision is expected later this year.
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[1] https://www.theregister.com/2024/09/05/apple_safari_uk_cma/
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