Apple appeals UK mobile browser investigation by attacking the word 'shall'

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in iOS
Apple has filed an appeal to fight the UK Competition and Markets Authority's investigation into the mobile browser market and mobile gaming, including an argument over the meaning of the word "shall."




The CMA declared it would be investigating the mobile browser market in November, with a focus on mobile gaming. Two months later, Apple files to try and put a stop to the affair.

Lawyers representing Apple filed a notice with the Competition Appeal Tribunal on Friday, demanding a review of the CMA's investigation, reports Reuters. Apple alleges that the CMA did not adhere to timing requirements that dictated the launch of the investigation itself.

Apple believes that the CMA's publishing of a Market Study Notice didn't meet the requirements that the CMA had to follow, including how proposals "for a market investigation reference (MIR) must be made within six months" of the MSN publication.

The CMA is also required to issue a final report within 12 months of the MSN date, and if the market study report includes a decision to make a MIR, the reference must be made at the same time as the publication of the final report.

Apple understands that the final report of the market study had a deadline of June 14, 2022, and a MIR should've been implemented on the same day. However, the market study notice was issued on June 15, 2021, the final report of the market study was released on June 10, 2022, and the MIR was produced on November 22, 2022.

'Shall' be a challenge

One problem with litigating the complaint, according to FOSSPatents, is that section 131B of the Enterprise Act of 2022 repeatedly uses the word "shall" when discussing the CMA's actions. The issue is that "shall" can be interpreted as an expression of intention for a party at the point of contracting, unlike language such as "must," which dictates a requirement.

If Apple can convince the tribunal that the intention of the laid-out rules leans towards a more rigid scheduling structure than a more flexible one, then Apple could potentially escape the market investigation on a procedural technicality.

Doing so would be beneficial to Apple, as the CMA's market investigation makes it easier for the regulator to impose remedies on firms, simply by demonstrating there are adverse effects on competition, instead of directly proving Apple did something wrong.

Escaping the MIR would leave the CMA with performing a more conventional antitrust investigation into Apple, which has higher barriers to reach.

The CMA responded to the appeal by insisting it would defend its position and continue working in line with the statutory timeline.

"We opened this investigation to make sure that UK consumers get a better choice of mobile web services and that UK developers can invest in innovative mobile content and services," said the CMA in a statement.

Read on AppleInsider

Comments

  • Reply 1 of 11
    In the U.S., "shall" is legally interpreted to mean exactly what Apple is arguing. Anything preceded by "shall" is intended to be a requirement. 
    watto_cobran2itivguy13485FileMakerFeller
  • Reply 2 of 11
    DAalsethDAalseth Posts: 2,588member
    In the U.S., "shall" is legally interpreted to mean exactly what Apple is arguing. Anything preceded by "shall" is intended to be a requirement. 
    That was my thought as well, that shall means it has to be done that way. But then British English is slightly different. 
    watto_cobra
  • Reply 3 of 11
    Check out this article that shall may give you a better understanding:

    https://www.plainlanguage.gov/guidelines/conversational/shall-and-must/

    freeassociate2drdavidJaiOh81watto_cobraFileMakerFeller
  • Reply 4 of 11
    DangDave said:
    Check out this article that shall may give you a better understanding:

    https://www.plainlanguage.gov/guidelines/conversational/shall-and-must/

    Excellent resource! Thanks DD!
    JaiOh81watto_cobraFileMakerFeller
  • Reply 5 of 11
    avon b7avon b7 Posts: 6,524member
    DangDave said:
    Check out this article that shall may give you a better understanding:

    https://www.plainlanguage.gov/guidelines/conversational/shall-and-must/

    That is a US government website. The issue at hand is the possible difference in interpretation in the UK legal system. 

    ronnmuthuk_vanalingamJaiOh81n2itivguyFileMakerFeller
  • Reply 6 of 11
    This is the same use of shall in Australia
    watto_cobra
  • Reply 7 of 11
    radarthekatradarthekat Posts: 3,578moderator
    The Cambridge dictionary states:

    shall modal verb (CERTAINLY WILL)

    formal or old-fashioned
    used to say that something certainly will or must happen, or that you are determinedthat something will happen
    The school rules state that no child shall be allowed out of the school during the dayunless accompanied by an adult.
    You shall go to the ballCinderella.

    watto_cobra
  • Reply 8 of 11
    davidwdavidw Posts: 1,742member
    The Cambridge dictionary states:

    shall modal verb (CERTAINLY WILL)

    formal or old-fashioned
    used to say that something certainly will or must happen, or that you are determinedthat something will happen
    The school rules state that no child shall be allowed out of the school during the dayunless accompanied by an adult.
    You shall go to the ballCinderella.


    I'm sure the use of "shall" here, counts as "old-fashion".

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise ..........

    ...... the right of the people to keep and bear Arms, shall not be infringed.

    No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner; .......

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, ........

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury ........

    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, .......

    ..... the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any Court of the United States,........

    Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. ........

    The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.


    Though the vast majority of the Founding Fathers who wrote the US Constitution were born in "America", they were born and grew up in British colonies, at the time.

    I find that when the word "shall" is used in laws and regulations, it nearly always means ...  "must" or "mandatory". The wording of the law or regulation usually leaves no doubt as to the intended meaning of the word "shall". It's seems that it's in contracts that the word "shall" can take on different meanings, other than "must" or "will" and can be contested if the intended meaning is not clear.






    edited January 22 watto_cobraradarthekatFileMakerFeller
  • Reply 9 of 11
    lkrupplkrupp Posts: 10,351member
    DAalseth said:
    In the U.S., "shall" is legally interpreted to mean exactly what Apple is arguing. Anything preceded by "shall" is intended to be a requirement. 
    That was my thought as well, that shall means it has to be done that way. But then British English is slightly different. 
    As a former POTUS once said, “It depends on what the definition of ‘is’ is.” Lawyers, gotta love ‘em. :smile: 
    edited January 23 FileMakerFeller
  • Reply 10 of 11
    avon b7 said:
    DangDave said:
    Check out this article that shall may give you a better understanding:

    https://www.plainlanguage.gov/guidelines/conversational/shall-and-must/

    That is a US government website. The issue at hand is the possible difference in interpretation in the UK legal system. 

    And Apple is arguing that "shall" implies mandatory action, which is in line with the UK system.

    The guidelines so helpfully linked to above are showing that while case law usually clarifies it also has the potential to obfuscate. I find it ironic that a discussion of legal terms declares "shall" to not only be "old-fashioned" but that such a status thereby qualifies as a reason to stop using it. Get rid of the Latin phrases first, you hypocrites.
    ronn
  • Reply 11 of 11
    maltzmaltz Posts: 360member
    lkrupp said:
    DAalseth said:
    In the U.S., "shall" is legally interpreted to mean exactly what Apple is arguing. Anything preceded by "shall" is intended to be a requirement. 
    That was my thought as well, that shall means it has to be done that way. But then British English is slightly different. 
    As a former POTUS once said, “It depends on what the definition of ‘is’ is.” Lawyers, gotta love ‘em. :smile: 

    And, legally speaking, he was right.  He truthfully said "There's nothing going on between us."  And "is" being present tense, it was true.  Was it the WHOLE truth?  Obviously not.  Was it intentionally misleading?  Definitely.  But was it the "truth"?  Absolutely.  The law is a lot like computer code - precision and edge cases matter a lot.  You have to ask the right questions to get complete, meaningful answers.

    Anyway, there are a lot of armchair lawyers here slinging definitions and interpretations, but in every law THIS armchair (US) lawyer has ever read, "shall" indicates a duty to do something.  It also means that in common language, even if it is a bit archaic in that context.  I'm not aware of any difference in either use in the UK, but I've watched enough British entertainment to think there probably isn't one.  If someone is arguing that "shall" is synonymous with "may" in a legal context, that's just unnecessarily unclear, if not outright misleading, if it's what they really meant when they wrote it.  It's far more likely that they're now just trying to weasel out of the original obligation.
    edited January 24 ronn
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