In quest to defeat Euro red-tape, Apple said it had three Safari browsers – not one

And with a straight face, too. Brussels didn't buy it

Apple tried to avoid regulation in the European Union by making a surprising claim – that it offers not one but three distinct web browsers, all coincidentally named Safari.

Never mind that Apple itself advertises the sameness of its Safari browsers when pitching its Continuity feature: "Same Safari. Different device."

Cupertino also claimed it maintains five app stores and five operating systems, and that these core platform services, apart from iOS, fell below the usage threshold European rules set for regulating large platform services and ensuring competition.

In September, the European Commission designated six gatekeepers – Alphabet, Amazon, Apple, ByteDance, Meta, Microsoft – under the Digital Markets Act and gave each six months to comply with the legal obligations outlined in the DMA, a set of rules designed to limit the power of large technology platforms and promote competition.

Apple was declared a gatekeeper in three core platform services: operating systems (iOS), online intermediation services (AppStore), and web browsers (Safari). As a result, it's expected that Apple will allow third-party app stores that work with iOS and browser engines other than Safari's WebKit by March 2024 – in Europe, if not elsewhere.

Informed of this back in July, Apple filed a response in August that challenged the European Commission's determination. In its response, "Apple reiterated its position that each of its Safari web browsers constitutes a distinct [core platform service]," the European Commission said in its newly published decision document [PDF].

"According to Apple, Safari on iOS, Safari on iPadOS and Safari on macOS qualify as web browsers within the meaning of [the DMA requirements]," the case summary explained, noting that Apple argued only Safari for iOS falls within the DMA's scope.

This strategy appears not to have been very effective. Apple's pushback has only managed to get the European Commission to further investigate whether iPadOS and iMessage should be seen as gatekeeper-controlled core platform services.

The decision document noted that Apple argued that its three Safari browsers each have different interface options and different uses. "For example, Safari on iPadOS and macOS include a sidebar feature, which allows end users to see opened tabs, tab groups, bookmarks and browsing history," the decision summary states. "This feature is unavailable on Safari on iOS."

Bruce Lawson, a UK-based web developer who helped found Open Web Advocacy, a group that has lobbied for regulatory restraint of Apple, characterized Apple's gambit as a "post-modernist triumph" for being essentially incomprehensible.

Lawson comments that "in order to avoid having Safari being deemed a Core Platform Service (and thus falling under the remit of DMA), Apple argues 'Look, those Safaris on iOS, iPadOS, MacOS, TvOS, WatchOS are TOTALLY DIFFERENT PRODUCTS and none of them have enough users in the EU for you to even think about regulating us, alright? We’re a tiny startup! Will nobody think of the children?!?' (I paraphrase somewhat)."

He also argued that Apple's approach explicitly violates the DMA's Anti-Circumvention provision that forbids subdividing a platform's market share to avoid regulation. The provision says those providing core platform services "shall not segment, divide, subdivide, fragment or split those services through contractual, commercial, technical or any other means in order to circumvent the quantitative thresholds laid down in Article 3(2)."

Hoist by your own marketing material

The European Commission made short work of Apple's argument by citing, among other rebuttals, Apple's own marketing copy that proclaims the singularity of Safari.

Screenshot of Apple's Safari website

Screenshot of Apple's Safari website stating that its browser, regardless of OS or device, is the "same" Safari ... Click to enlarge

The decision document noted: "As Apple explains on its website, all these features allow Safari to work seamlessly across devices: 'Same Safari. Different device: Safari works seamlessly and syncs your passwords, bookmarks, history, tabs, and more across Mac, iPad, iPhone, and Apple Watch.'"

Citing six different issues with Apple's claims, the commission concluded: "Safari qualifies as a single web browser, irrespective of the device through which that service is accessed."

Safari qualifies as a single web browser, irrespective of the device

Jon von Tetzchner, CEO of browser biz Vivaldi, told The Register in a phone interview that Apple, Google, and Microsoft all are trying to find ways to avoid onerous DMA requirements.

"All of them are trying to do that," he said. "This is very similar to what Microsoft is doing. Microsoft says no one uses its Edge browser so it should not be designated as a gatekeeper."

Meanwhile, Google is trying to make browser choice screens less effective, he opined.

Von Tetzchner expressed skepticism about Apple's argument that it has three different browsers. "It's all part of the same ecosystem and you have to look at the ecosystem as a whole," he said.

And he agreed that Apple, Google, and Microsoft all qualify as gatekeepers. "We have to go through them to get to any users," he said.

Von Tetzchner expressed optimism about the effect of the DMA. He said he's expecting a relaxation of restrictions and that if that doesn't happen, the DMA isn't functioning properly.

"I have a lot of hope for the DMA," he said. "The EU has been working with these guys for a number of years, trying to ensure there's real competition."

Apple did not respond to a request for comment. ®

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