Antitrust Law Daily Wrap Up, ANTITRUST NEWS: European publishers question Google settlement in EC search probe, (Sep 4, 2014)

By Jeffrey May, J.D.

Google's third set of commitments intended to resolve a European Commission (EC) antitrust investigation into the company's search practices “are wholly insufficient to restore competition, innovation and consumer choice to the digital market,” according to group of European and national associations of newspaper and magazine publishers. In a September 4 response to the proposed commitments, the groups contended that the proposed remedies “will secure Google dominance” and “legalise its anticompetitive conduct.”

The EC's antitrust investigation into Google's search practices and search advertising dates back to 2010. German and Spanish press publishers' associations were among the complainants.

The EC's investigation identified four types of business practices that might amount to an abuse of a dominant position in violation of European Union (EU) antitrust rules. The EC sought commitments from Google to resolve the following four concerns: (1) Google’s preferential treatment of links to its own vertical search services in its general search results; (2) Google’s copying of original content from competing vertical search services and use of it in its own offerings without prior authorization; (3) agreements between Google and partners on the websites of which Google delivers search advertisements that result in facto exclusivity requiring them to obtain all or most of their requirements of search advertisements from Google; and (4) Google’s restriction on the portability of online search advertising campaigns from its platform AdWords to the platforms of competitors.

Settlement negotiations eventually led to Google's third set of commitments in early 2014. The EC announced on February 5 that a proposed settlement was capable of addressing the EC's competition concerns. EC Competition Commissioner Joaquin Almunia said that he intended to “move forward towards a decision based on commitments.”

Under the settlement proposal, Google agreed to display rivals to its own specialized search services (services allowing users to search for specific categories of information such as restaurants, hotels, or products) in its results in a way that was clearly visible to users and comparable to the way in which Google displayed its own services. The proposed remedy was intended to resolve EC concerns that users might not be aware of the promotion of Google’s services within the search results and that traffic could be diverted away from Google’s competitors towards Google’s own services. Google also has agreed to an independent compliance monitor in Europe for five years.

In addition, Google has agreed to: give content providers an extensive opt-out from the use of their content in Google’s specialized search services; remove exclusivity requirements in its agreements with publishers for the provision of search advertisements; and remove restrictions on the ability for search advertising campaigns to be run on competing search advertising platforms.

The press publishers argue that the proposed settlement does not remedy the serious competition concerns identified by the EC. They suggest that the conditions would not bring Google's abuse of dominance to an end. The groups remain concerned about Google’s use of publishers’ content, among other things.

According to the groups, by “using its monopoly in search, Google has made it economically impossible for content providers to disallow Google's use of content within its specialised search services.” Content providers cannot risk the detrimental effects on the ranking or appearance of a website in the general web search as a consequence of utilizing the proposed opt-out solution, it was argued.

As the settlement moves to the College of Commissioners for approval, the groups ask the commissioners to reject the proposed commitments and to opt for a comprehensive prohibition decision instead.

Companies: Google, Inc.

News: Antitrust