' Googling “Search Bias”: The Efforts of Antitrust Agencies to Even the Playing Field. | MTTLR

Googling “Search Bias”: The Efforts of Antitrust Agencies to Even the Playing Field.

Google has been a target of antitrust allegations for nearly as long as it has existed. In recent years, agencies domestic and abroad have accused the tech giant of “search bias.” The charge of search bias—levied against Google by competitors and watchdogs—asserts that the company designed search algorithms to promote its own targeted content at the expense of third-party content and advertising. Google is a slippery target: twice now escaping essentially unscathed from investigation by the FTC and European Commission. The latter of these settlements, however, may be altered or even undone in the course of the next few months.

In January of 2013, Google satisfied FTC investigations into antitrust violations of search bias because there was no evidence that Google intentionally sought to hurt competition. Admittedly, the FTC conceded, Google’s play-to-win attitude led the company to strive to out-best its competitors.[1] But Beth Wilkinson, FTC’s outside counsel, publicly maintained that “the FTC’s mission is to protect competition, and not individual competitors.”[2]

From Google’s side, the company made two concessions in order to avoid fines by the FTC.[3] First, the company agreed to desist from preventing competitors’ access to key technologies by way of patent blocking. In essence, Google has a history of scooping up smaller companies and their valuable patent portfolios. Later, the company files injunctions against competitors seeking to purchase a license to use the patented technologies in their own products. Tech companies generally commit to license appropriate patents under FRAND (“fair, reasonable, and non-discriminatory”) terms. Google, conceding that there might have been some slippage on those promises with the above patents, has re-committed to the FRAND cause. Second, Google promised to remove restrictions preventing advertisers from managing their own ad content on Google’s pages. Critics within the FTC and Congress questioned why the FTC settled for the above “voluntary commitments” from Google, instead of seeking a formal consent order.[4]

More recently, Google agreed to a formal settlement with the EU’s European Commission. Facing complaints that it abused its dominant position in European search markets, Google could not rely on its successful American defense of proving that its efforts were all geared towards creating a better product for its customers. For example, Google contended, and continues to contend, that its algorithms aim to provide the most relevant search results to its users, whether such a result is a website, a map, a forecast, or a game score.[5] In the EU, the primary goal of antitrust enforcement in this realm is protecting small businesses and other competition, not to be quashed by the no-holds-barred “best product” decry. As a result, the EU has cowed Google into agreeing to even more substantial commitments in its European search strategies than those promised following the FTC investigation. Most significantly, the company agreed to display the results of at least three competitors every time one of their own directed results from a specific search appeared.[6]

But this summer has seen some skepticism surrounding whether the EU settlement will stick. Intense opposition from politicians and affected competitors, as well as studies showing the settlement terms to likely be ineffective, have made some wonder if Joaquín Almunia, the current antitrust chief of the EU, will hold off on finalizing the settlement until a successor takes office in November.[7] A non-public letter from Mr. Almunia indicated that the European Commission planned to investigate many other antitrust allegations cited to Google, seemingly in an attempt to garner the support needed to finalize the current settlement quickly.[8] But, just last week, Google’s critics notched another small victory: the EU rejected Google’s third settlement offer, stating that the corporate giant will have to make more concessions to reach a satisfactory settlement.[9] Both sides continue to insist they are working together in finding a solution that will work.

Until the settlement is finalized or revamped, Google supporters and critics wait to see if search bias has finally risen into the effective purview of antitrust enforcement. Furthermore, how would Google and other international tech companies adjust to comply with disparate antitrust regulations in the wake of such a split between the FTC’s American conclusion and the potential European findings?

 

[1] Chris Crum, WebProNews, “Was FTC Too Easy on Google? Too Hard?.”
[2] Id.
[3] See FTC press release.
[4] Anaut Raut, 12-AUG Antitrust Source 1, “Antitrust in the 113th Congress”.
[5] Amit Singhal, Google’s Public Policy Blog, “Setting the Record Straight: Competition in Search.”
[6] Claire Cain Miller & Mark Scott, New York Times, “Google Settles Its European Antitrust Case; Critics Remain.”
[7] James Kanter, New York Times, “EU Prepares to Step Up Google Investigations; Opposition Grows in Europe to Google Antitrust Proposal.”
[8] James Kanter, New York Times, “Google’s European Antitrust Woes are Far From Over.”
[9] Geoffrey Smith, Fortune, “E.U. Rejects Google’s Latest Effort to Settle Antitrust Suit.”

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