Professor Mark Patterson wrote an op-ed for Huffington Post where he says that the EU’s Google decision could be viewed as a failure of antitrust.
The European Commission began its investigation into Google search bias in 2010. At that time the Commission referred to complaints about “an alleged preferential placement of Google’s own services” in its search results. Almost seven years later, the decision tells Google to apply “equal treatment” to its own shopping services and those of its competitors. That is, the Commission is now telling Google to stop the preferential treatment it referred to in 2010.
It is not clear, though, exactly what Google did wrong, and therefore it is not clear what conduct Internet firms like Google should avoid. The Commission emphasizes algorithmic “demotions” of competitors’ web sites in Google’s search results. But one person’s demotion is another person’s quality assessment. The U.S. Federal Trade Commission conducted its own Google investigation and in 2013 concluded that Google’s goal, even when it hurt competitors, “was to quickly answer, and better satisfy, its users’ search queries by providing directly relevant information.”
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The claim here is not that Google’s conduct has been above-board. Google and its competitors providing shopping services make money when users click on their links to go to a seller, so Google has plenty of incentive to ensure that those clicks go through its own links, not through its competitors’. Therefore, it is not hard to imagine that Google might have used its power in the search market to injure its competitors. It is important, though, that antitrust have clear rules, so that firms know what conduct is allowed and what is forbidden.
In this respect, the Commission does not tell us what factors Google and other firms are, or are not, permitted to use in applying “equal treatment.” If Google believes that a feature of its own shopping services is valuable, and its competitors do not have that feature, may Google take it into account in its algorithm? What if its competitors have other features that they claim are analogous or even better? Must Google then treat all those features equally? Must Google survey consumers to determine which features are more equal than others?