Potential future use of DFA and DFP by DoubleClick
These contractual restrictions were created when DoubleClick was only an ad serving provider and this neutrality is considered as an asset to be able to guarantee each customer the benefit of the same service as all other customers. Taking into account the potential development of DoubleClick into an integrated intermediation provider, some market respondents expressed concerns that the interests of DoubleClick to increase the cross use of this data could lead to a modification of the contractual conditions proposed to customers or a pressure upon customers to grant waivers of existing conditions in order to allow this new use and then aim at increasing the collection of data.
Indeed, in view of the new role that DoubleClick could play by developing a bundled solution combining both its (still very minor) intermediation services and its current ad serving activity, it cannot be excluded that such contractual constraints would be modified as DoubleClick would have a strong interest in increasing its collection of data. Some third parties have also suggested that DoubleClick could, for instance, offer financial incentives to some of its customers in order to extend the use of data collected through them. Such customers could also be offered a reciprocal use of data collected from other customers to incite them to modify their current contracts. Thereby a direct network effect in the ad serving market to the benefit of DoubleClick could arise, which could ultimately also benefit DoubleClick in the intermediation market.
However, there is no evidence that DoubleClick possesses market power that would allow it to impose such far-reaching contractual changes on its customers. Indeed, in the recent past, DoubleClick has had to make considerable efforts to retain customers that were contemplating a switch to another platform. To prevent such customers from switching, DoubleClick offered them substantial decreases in the price of its services.
Similarly, to prevent customers (advertisers or publishers) from switching to other ad serving providers, DoubleClick will also likely have to refrain from modifying the contractual terms regarding the use of CPI data. Indeed, on the basis of the market investigation it seems unlikely that, in the future, advertisers and publishers will agree to share much more data with DoubleClick than they do now. In fact, the submissions of a considerable number of advertisers and publishers rather indicate that they are clearly reluctant to allow their competitors to benefit from the use of ‘their’ data135. Advertisers obviously have no interest in other advertisers having access to their data and consequently learning competitively important information such as information about the pricing of ads across different websites. Similarly, publishers would be reluctant to share their data with other publishers competing for the same advertising budgets.
In view of all these circumstances, DoubleClick therefore probably lacks the
ability to force upon its current customers a change in contractual relations.
This is indicated by the fear, clearly voiced in the market investigation, that a merged entity would use data in precisely such a way.