App Tracking Transparency Framework from Apple - More privacy in iOS 14.5?

Not only websites, but also mobile apps use tracking. The data obtained in this way is used to specify advertising and exchanged with advertising networks for this purpose. To do this, they use the advertising ID of the mobile device, also known as the advertising identifier (IDFA), which is visible to them by factory setting.

Apple's new iOS 14.5 update includes a new feature: The user can allow or deny app tracking via a message from the operating system when opening an app. According to Apple, this is to protect the user's data.

How this is to be evaluated in terms of data protection and antitrust law is described below.

Data protection law

Tracking involves the identification of a user over a longer period of time by means of various procedures. This process involves the processing of personal data, which always requires a legal basis.

The first thing to think about is consent. Since tracking can take place not only via the advertising ID, but also via cookies, the legal considerations regarding cookies can be applied as well: If the user's terminal device is accessed, not only the GDPR but also the Telemedia Act and the ePrivacy Directive are relevant. Accordingly, only consent is conceivable as a legal basis, which according to the BGH (Planet49 decision of May 2020) must be obtained in an opt-in procedure, insofar as data collection for advertising, market research or profiling purposes is involved. Consent must also be obtained voluntarily, clearly, informed and revocable in accordance with Art. 4 No. 11 and Art. 7 DSGVO.

Any app that wants to track the user must obtain consent anyway. Appel's AppTrackingTransparency-Framework (ATT) only enforces this even more, which is a positive development from a data protection point of view. The Federal Association of Consumer Organizations also praises Apple's strategy.

Antitrust and competition law

However, critics counter that Apple is only pursuing its own business goals with the ATT: Especially free apps that are financed by advertising within the app have less revenue, so they can no longer remain free. If paid apps are offered in the Apple Store, however, Apple earns money from them again. Apple's economic self-interest is not unlikely here.

In addition, at the end of April, leading associations of the Internet, media and advertising industries filed complaints against Apple with the German Federal Cartel Office. They complain that Apple is abusing its market power by using the ATT. From an antitrust point of view, the new data protection provisions are unfair competition, as it makes it more difficult for the advertising industry to access competition-relevant data, and does so in an inadmissible manner. This is contrary to the new provisions of the Act against Restraints of Competition (GWB). Based on this, the Federal Cartel Office could take more effective action against abusive behavior by market-dominant platforms.

In summary:

It remains to be seen how the dispute in the area of competition and antitrust law will turn out and accordingly shape the picture of Apple's new strategy.

Until then, the approach is initially to be welcomed from a data protection point of view, even if some app operators will not see it that way.