Facebook parent Meta has been mounting a fierce appeal of the U.K. antitrust ruling that probes and finally forces Meta to sell Giphy, the online GIF marketplace it bought way back in May 2020 for about $315 million; and now it has been handed a small reprieve from execution: the U.K. Competition Appeal Tribunal has ordered the antitrust regulator, the Competition Markets Authority, to revisit the case, after ruling that the CMA did not disclose all the un-redacted documents related to its reasoning to Meta representatives.

Remarkably, appeals tribunal upheld every other aspect of the CMA's ruling — namely, that the CMA acted within its powers and did not make an unreasonable evaluation and subsequent remedy in this case, where it deemed that competition in social media would be harmfully reduced due to the acquisition.

But still, this is an incremental win for Meta's legal team.

This ruling essentially sets the CMA's decision it published in November 2021, where it forced Facebook-now-renamed Meta-to sell Giphy-under pause, the order now "provisional"and set once more for reassessment based on the application of Meta's lawyers to provide further documentation regarding the case so they may resubmit their case.

The tribunal made its decision last June, but was published today in a brief note (per Bloomberg). You can read the full 107-page citation here, or the one-page summary of the decision here.

The particular passage discussing how the case is sent back noted that the CMA "failed to properly consult and wrongly excised portions from [its] Decision," and it also noted that the CMA erred on this point because "the named individual members of the CMA group [in the Decision] are not expected to personally conduct a merger investigation and personally draft the CMA's provisional findings and final decision.".

According to a statement to TechCrunch from the CMA, "The recent judgment from the Competition Appeal Tribunal has endorsed the CMA's approach to reviewing mergers that may harm innovation." The CMA has claimed victory on five of six grounds but lost one against Meta, in connection with its process of sharing confidential information. It has agreed to consider its decision in light of this finding. We shall begin our review forthwith and hope to effect the remittal within three months from today's order.

We have contacted Meta for comment, too, and will update this post as we learn more, but in practice it means that Meta's legal team will now get access to the CMA's final, unredacted report to mount a new defense of the deal, and specific rebuttals to any points, based on that data.

The original acquisition of Giphy, had the CMA's order survived, would have required, not just that Meta find a buyer, but that it also pay a break fee to Giphy as a penalty. Ironically, the case has already seen information withheld on the other side: Facebook paid a fine of $70 million for not providing data to the CMA in connection with the antitrust investigation-a fact that, yet again, is irrelevant to the tribunal ruling.

If you are wondering who else might be interested in acquiring the company if Meta cannot, or if Giphy would look to build its own independent business, it's interesting to see that in the meantime Giphy's been making some very interesting deals with other social media companies such as TikTok and Reddit.

The panel decision of the CMA published in November 2021, overturned in this judgment, pointed out that "Facebook would be able to further strengthen its already impressive market power relative to other social media platforms by denying or restricting other platforms' access to Giphy GIFs, driving more traffic to Facebook-owned sites — Facebook, WhatsApp and Instagram — which already capture 73% of user time spent on social media in the UK, or altering the terms of access by, for example, requiring TikTok, Twitter and Snapchat to provide additional user data in order to access Giphy GIFs.".

It also found that the combination would impact the market for display advertising. "Before the merger, Giphy had launched new forms of advertising products which it intended to launch outside of the U.S., including in the U.K. Giphy's products allowed companies — such as Dunkin' Donuts and Pepsi — to express their brands in their unique visual representations and GIFs," the CMA said.

This would have prevented Giphy's display advertising service from rivalling with Facebook's own display advertising service. It would have also driven greater innovation from other market participants, including social media sites and advertisers themselves. Facebook was operating Giphy's display advertising service at the time of the merger and thereby eliminating an important potential competitor to its own. The CMA deems this particularly troubling, given the fact that Facebook already accounts for nearly half of the £7 billion display advertising market in the UK.

If information is the great piece of currency in the courts then Meta has made an important inroad into giving it another go at keeping Giphy, and for its part, the CMA has discovered when thrown against a tech giant's legal team one needs to be unimpeachable in the way it goes about all of its paperwork and other work.

It is more than this, however. Some have seen this Giphy deal and how it has played out in the antitrust arena as a kind of make-up for what, in retrospect, looks like a failure to bring in more oversight and potential competitive remedies around much bigger deals that Facebook made years ago, its acquisitions first of Instagram and then WhatsApp.

In that respect, it becomes precedent of sorts for both sides. A win here for Meta throws down a very strong message to Meta with all the subsequent M&A and what it might hope to do with it. And a win for the CMA sets the tone for how it might play out its response to such deals of this size not only for Meta but other big social media and consumer internet giants as well.