Europeans Go “Fishing” For Bad Google Behavior In Anti-Trust Inquiry

According to the NY Times, EU antitrust officials have developed a lengthy questionnaire directed to advertisers as part of its antitrust inquiry into Google’s business practices. Broadly speaking the 120 question document “seeks to ascertain whether Google manipulated search results and used its popular platform to keep business and disadvantage rivals in online advertising and Internet search.”

A Fishing Expedition?

A skeptic might call it a “fishing expedition.” Others would argue investigators are simply being thorough. Here are some example questions cited in the article:

• Please explain whether and, if yes, to what extent your advertising spending with Google has ever had an influence on your ranking in Google’s natural search
• Has Google ever mentioned to you that increasing your advertising spending could improve your ranking in Google’s natural search?
• Did you ever refrain from advertising on other online advertising platforms because you considered the porting of advertising campaign data from Google’s AdWords to those platforms to be too expensive and/or too burdensome?

EU investigators are also asking whether companies have been “automatically opted in to the provision of other advertising services by Google (e.g. mobile search ads, etc.)” and whether they were “aware of this when [they] entered into the agreement with Google” and “how [they] could have opted out.”

Some ‘Leading Questions’

Apparently there’s a separate questionnaire for “vertical search services” (a couple of which helped initiate the action against Google). Among the questions to that group are the following:

• If Google introduced its competing vertical online search services after you introduced yours, please explain what was the impact on your business if any.
• Is your company aware of the existence of the features in Google’s natural search ranking algorithm which, in your view, might penalize the ranking or display of your vertical search Web site pages?

EU officials say that they’ve made no decisions and that a finding of antitrust liability is not a foregone conclusion.

However it appears to me, from looking at these few questions, that there are some assumptions and preconceptions and maybe biases about Google going in. Many EU officials have made public comments that Google is too powerful and influential and should be restrained in one form or another or have its discretion limited in some way.

I would imagine there will be some “yes” responses to the questions above and others in the survey. I would be surprised, however, if any of the really glaring scenarios will be found — for example: Has Google ever mentioned to you that increasing your advertising spending could improve your ranking in Google’s natural search?

It’s much more plausible that you’d get a “yes” to a more subjective question like, “Did you ever refrain from advertising on other online advertising platforms because you considered the porting of advertising campaign data from Google’s AdWords to those platforms to be too expensive and/or too burdensome?”

A Mixed Outcome

I would predict that the outcome of the investigation will probably be mixed, with some advertisers and publishers complaining about Google’s power and answering “yes” but probably no “smoking guns” will emerge. That will leave the EU in a murky position regarding remedies and regulation. By the same token, I don’t think Google will get away entirely unscathed.

But if there were to be a finding of sufficient bad behavior to trigger antitrust liability, the remedies (beyond fines) become problematic to devise and implement. The EU could compel Google to make it much easier for advertisers to port their accounts and campaigns to Bing and elsewhere. But that doesn’t address the core complaint about Google’s search results and its own vertical properties competing with third parties.

The challenge comes in imposing any kind of remedy that would seek to regulate search results pages themselves or Google’s algorithm. Intervening in any way “on the page” or preventing Google from sending traffic to itself would be a mess. And there is also the argument that Google should have complete discretion over its own SERPs.

Antitrust regulations ultimately seek to protect consumers, indirectly by protecting competition in the market. Accordingly there’s the often-made statement that consumers have choice and the “competition is just a click away.” However few European regulators seem to buy that at this point.

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