Antitrust Chronicle® – Online Advertising

Dear Readers,

This edition of the Chronicle deals with the antitrust responses to one of the most ubiquitous, and complex phenomena in online commerce: online ads. 

Today, it is almost quaint to consider that online advertising was strictly banned at the dawn of the Internet, as indeed was any “use for commercial activities by for-profit institutions.” From the lifting of this ban in 1991 to today, spending on online advertising has grown to far surpass that spent on traditional outlets such as print, TV, and other broadcast and physical media. Online advertising is multifaceted, and covers many types of online media, including email, search engines, social media, video advertising on online streaming platforms, traditional web banner advertising, and mobile advertising.

Advertising on each of these media types is itself a multi-level industry, comprising the advertisers themselves, ad agencies, ad exchanges, and a plethora of intermediaries and data brokers that automate which ads are shown to which consumers and when, usually in a programmatic auction-based system (all of which together is sometimes put under the collective umbrella term “ad tech.”). 

While online advertising undoubtedly has produced efficiencies compared to older techniques, antitrust issues inevitably arrive at key bottlenecks in the chain that leads to a particular ad being targeted at a particular consumer. This technology and market structure is constantly evolving, and has b