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Data gathered by other online operators

  • 268.

    It is also useful to recall that several DoubleClick's competitors are currently already in the position to offer services to their customers that equal those that could be achieved by DoubleClick if it was not bound by the contractual constraints regarding data analysis and use. Just looking at the technical situation, Yahoo!, Microsoft (both with their recent acquisitions) and even Google without the merger could offer them, building on data collected throughout their ad networks136. This shows that even in the unlikely situation that DoubleClick could somehow free itself from the contractual constraints this would hardly allow it to offer unique functionality137.

  • 269.

    Moreover, even the merged entity, let alone DoubleClick alone, would not have access to unique, non-replicable data because the type of information collected by DoubleClick is relatively narrow in scope. Other companies active in online advertising have the ability to collect large amounts of more or less similar information that is potentially useful for advertisement targeting. The following paragraphs sketch a few examples of such current or potential data collection.

  • 270.

    For instance, portals and other major web publishers typically require their users to register and provide personal information, and they design their websites to keep users on their web pages for the greatest length of time possible, all the while observing and recording their users’ behaviour. As a result, major web publishers can (and do) collect a vast amount of information about their users’ interests and actions. Following its proposed acquisition of BlueLithium, Yahoo! will be able to collect behavioural data across both Yahoo!’s own sites and BlueLithium’s ad network to target display advertising based on demonstrated user characteristics (BlueLithium and Yahoo! have the third and fifth largest global web audiences, respectively).

  • 271.

    Internet service providers can track all of the online behaviour of their users, following them to every website they visit. Particularly large internet service providers could thus try to team up with advertisement companies to make use of this data under the restrictions imposed by privacy rules, but they could also try to use this data with their customers' consent, for instance in exchange for lower prices. Several companies offer appliances for "deep packet inspection" of network traffic routed through internet service providers in order to extract information that is meaningful for ad targeting138. Data collected in this way is potentially much broader and richer than data collected by DoubleClick (or even

136

It must be noted, however, that until now Google has a self-imposed policy not to accept third parties' ad tags and, thereby, not to track a user’s behaviour after the first click on the ad.

137

Moreover, this consideration also shows that Google did not have an incentive to acquire DoubleClick in order use its strong position in the market for search ads to coerce DoubleClick’s customers to enter into less constraining contracts because this would only give it the ability to do something that Google could already do pre-merger.

138

See Bobby White: "Watching What You See on the Web. New Gear Lets ISPs Track Users and Sell Targeted Ads; More Players, Privacy Fears", The Wall Street Journal, 6 December 2007, p. B1.

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