Search engine bias: when antitrust meets the “Nirvana Fallacy” of search neutrality

Search engine bias: when antitrust meets the “Nirvana Fallacy” of search neutrality

di Mirta Cavallo

---

 

 

«To exist is to be indexed by a search engine» [1]

 

1. Introduction

In high tech markets, changes in technologies determine significant changes in the market as well. This often occurs quickly and in unpredictable ways. And when antitrust intervenes in such dynamic markets, a number of questions are triggered, ranging from legal to economic, to political ones.

Significant changes have also occurred in the search engine industry, where protected interests often relate to information and personal data, transparency and the control of opinions ([2]). More specifically, four major developments could be identified: (i) Google’s dominance of the industry, despite the emerging competition from businesses – such as Twitter or Facebook – which do not qualify as traditional search engines but engage in keyword searching; (ii) different structure of Google search results pages, with an evolution from the “ten blu links” model to the displyaing of certain content directly on the search result page (“portalization”); (iii) Google expansion of its proprietary services offerings, which are then promoted in its search results pages; and (iv) the emergence of a “search neutrality” debate, in some way connected to the “net neutrality” one ([3]).

In such a changed landscape, the European Commission and the U.S. Federal Trade Commission  (hereinafter, the “FTC”) have investigated Google’s exercise of its editorial discretion in displaying its search results from an antitrust perspective ([4]) and different proposals have been advanced  to tackle the problem of search manipulation.

 

2. Role, functioning and evolution of search engines

Over the years the quantity of information available on the Internet has been growing on an exponential rate. In the information society we live in, information is massively used and plays a pivotal role in all contemporary affairs, determining a shift away from an economy of goods into an economy of information ([5]). In such mare magnum of available information, the real challenge is no longer to obtain information, but to identify the most relevant one. This explains the fundamental role played by search engines, such as Google, Bing and DuckDuckGo.

Among them, the most preminent position in this high-margin, multi-billion dollar industry is held by Google ([6]), to the point that some scholars have discussed about “the Googlization of Everything” ([7]), with users being not just customers, but products ([8]) or – even – subjects ([9]).

As regards the functioning of Google as search engine, it should be noted that it provides “organic” search results to its users free of charge ([10]). In addition, there are kewyword ads, i.e. advertiser-sponsored links ([11]). The economic sustainability of the service is in fact ensured by selling advertisement space to those businesses seeking visibility to better promote their websites and products. All this makes Google a two- or multi-sided platform ([12]).

Besides being an “horizontal” search engine – that crawls the entire web and, upon query, displays the results from any type of source available –, Google works also as a “vertical” search engine that focuses on narrow categories of content only, thus addressing more specific searches (e.g., flights) ([13]).

Over the years, Google search results page has become more complicated, with marketers seeking to appear among the first results in each subzone and the risk of search bias increasing in direct proportion to the number of existing results zone ([14]). Moreover, while the original goal of Google was to direct users to thid-party websites as efficiently as possible, Google’s priority is now to answer to users’ queries directly on the search results page, above other organic results, without the user having to visit third-party websites. This practice, know as “portalization”, seems to put Google in competition with the latter and raised a number of complaints by information providers that believe Google to unduly exploit their content ([15]).

Furthermore, the fact that Google has also expanded the content services it owns (e.g., purchasing YouTube) has triggerd the concern of search bias aimed at favouring its own or affiliated products, turning Google from «a facilitator between searchers and the rest of the web» that operates to best serve its users’ needs to a «a portal that wants to keep searchers within its offerings» for its own competitive advantage and economic profit ([16]).

The issue of search bias is strictly related to that of relevance and search neutrality. Indeed, in a sector where competition is based on quality rather than prices ([17]), relevance constitutes the most distinctive and crucial factor ([18]). The results are listed by relevance, on the basis of algorithms designed to predict users’ preferences and behaviours.

Although only each user can evaluate the relevance of the information obtained for his/her search, ex post, search results still qualify as “credence goods”, i.e., goods whose quality is difficult to evaluate even after the use ([19]). Also for search engines evaluating the degree of satisfaction of its users is problematic, which is usually done by analysing users’ subsequent behaviour and the loyalty to the platform. However, migration to other search engines remains just theoretical when there are not meaningful alternatives in the market; accordingly, any search engine bias by Google could constitute a serious threat to online information accessibility and credibility ([20]).

Given that «Google has emerged as the dominant search engine, much of the “search engine bias” discussion has merged with a critique of Google’s biased practices» ([21]). This has prompted the investigations of the antitrust authorities on both sides of the Atlantic and fueled the debate on search neutrality.

 

3. The European case

In furtherance of allegations that Google abused its dominant market position in violation of Article 102 TFEU[22], in Novemebr 2010 the European Commission launched an investigation into Google’s activities as search engine to ascertain any unfavourable treatment to other search services – by lowering their ranking in its unpaid and sponsored search results –, coupled with preferential placement of its own services ([23]). Another focus of the investigation was the alledged imposition by Google of exclusivity obligations on advertising partners with the ultimate goal of shutting out competing providers of search advertising intermediation services ([24]).

As then specified by Competition Commissorioner Joaquín Almunia, the investigation mainly concerned Google practice of: (i) displaying in its general search results page the links to its own vertical search services differently than it does for the links to competitors; (ii) scraping, i.e. using material from the websites of its competitors (e.g., user reviews) for its own services without their prior consent; (iii) advertising exclusivity; and (iv) restricting the portability of online search advertising campaigns from its platform AdWords to the platforms of competitors ([25]).

Pursuant to Article 9 of the EU Antitrust Regulation ([26]), in 2012 Google was asked to propose remedies to have the matter solved through a “commitment decision” rather than the formal proceedings of a Statement of Objections ([27]), but it was later notified by the European Commission that, according to its preliminary assessment, the four concerns above constituted in fact abuses of a dominant position ([28]).

After technical discussions, market tests and consultations, as well as some promising commitment proposals and even the pre-rejection letters sent by the DG Competition to the complainants ([29]), Alumnia did not manage to finalise the commitments within his term and when, in November 2014, the New Commissioner, Margrethe Vestager, assumed office, the Parliament had passed a resolution requiring the Commission «to enforce EU competition rules decisively», «to consider proposals aimed at unbundling search engines from other commercial services» and to ensure that «indexation, evaluation, presentation and ranking by search engines must be unbiased and transparent» ([30]).

Accordingly, in 2015 the European Commission sent a Statement of Objections to Google on its comparison-shopping service, affirming that Google has a dominant position in online search throughout Europe and that it has being abusing it in violation of EU competition law by systematically prioritising its comparison shopping services and penalizing its rivals, the end result being that «users do not necessarily see the most relevant results in response to queries – to the detriment of consumers and rival comparison shopping services» and, therefore, «a negative impact on consumers and innovation» ([31]).

This was later confirmed in a supplementary Statement of Objections ([32]) and in the final decision of 27 June 2017 whereby Google was fined 2.42 billion euros ([33]).

 

4. The U.S. case

In comparison to the EU case, a different conclusion was reached by the FTC, despite the similarity of the allegations: some advertisers and Google’s rivals claimed to the FTC that «Google unfairly preferences its own content on the Google search results page and selectively denotes its competitors’ content from those results» ([34]) in contrast to Sherman Act § 2; it was further claimed that Google used content from rivals’ websites for the purpose of displaying it in it own Covered Webpages and restricted advertisers’ ability to advertise both in Google’s AdWords and other rival websites at the same terms. These allegations related to one of the two separete sets of business practices investigated by the FTC, the other one being patent licensing issues that Google inherited by acquiring Motorola Mobility in 2012 ([35]).

After nineteen months of investigation, including empirical analyses and interviews with all relevant stakeholders ([36]), and despite a report prepared by the staff with a compelling case against Google ([37]), on 3 Januar 2013 the FTC concluded that «while Google’s prominent display of its own vertical search results on its search results page had the effect in some cases of pushing other results “below the fold,” the evidence suggests that Google’s primary goal in introducing this content was to quickly answer, and better satisfy, its users’ search queries by providing directly relevant information». As for content scraping and restrictions on advertisers’s ability to advertise also on competing search engines, the FTC deemed Google’s commitments «appropriate and consistent with past practice» ([38]).

In other words, the FTC concluded that Google had a dominant position, but that it did not abuse it: not only the evolutionary modification of the search architecture found to be not abusive, but it was deemed consistent with advancement of consumer interests and procompetitive. This is in line with the longstanding reluctance by antitrust authorities and courts to recur to antitrust law to supervise product design, especially in highly dynamic markets ([39]).

 

5. The search neutrality debate between antitrust theories and regulatory remedies

The EU and US cases fall within the borader debate on search neutrality. While the net neutrality debate relates to the nondiscriminatory transmission of data packets regardless of their respective contents ([40]), the search neutrality debate concerns the lack of search engine bias and manipulation of results ([41]).

Any disalignment with the ideal standard of neutrality would have implications from an antitrust perspective, on the one hand, and from a social and cultural perspective, on the other hand, given that search engines operate as point of controls in our society and play a crucial role with regard to transparency, openness and, more importantly, democracy ([42]).

In light of this, the search neutrality principle would have to be either a standard of conduct to be established through regulatory means, or a result to be achieved through antitrust authorities’ intervention as a matter of competition law ([43]).

As regards the antitrust perspective, the assumption that a deficit in search neutrality causes competitive harm has led to antitrust authorities conducting the said investigations and scholars relying on several theories. In particular, it has been held that certain editorial decisions – either incorporated into the search engine algorithm or manual – consistute “monopolization” both under European and U.S. competition law. According to the “essential facility doctrine”, Google’s role as “bottleneck” of the Internet and gatekeeper of modern information grants it the ability to determine which websites are accessed (and succeed) and wich ones are not (and fail). In fact, according to search neutrality advocates, Google excludes its rivals, as well as nascent search websites, to users and, consequently, to consumer sales and advertising revenues. All this amounts to foreclosing from critical inputs ([44]).

Under an alternate monopolization theory, Google has been accused to abuse its prominence as a search engine to favor its services, the end result being to disadvantage its competitors by increasing their costs, in comparison to its own. In other words, such discrimination forces Google’s rivals to recur to more expensive substitute distribution channels and, consequently, to bear substantially higher costs that would be necessary if search results were not biased ([45]).

In evaluating any abuse of dominant position by Google, it is difficult to identify the exact boundaries of the relevant market ([46]), but also the abusive conduct, in light of the advantages for users in terms, for instance, of search costs.

Even setting the allegation of anti-competitive conduct aside for a moment, concerns have been raised in relation to the profit-making nature of a private company as important as Google in providing access to culture-defining information online ([47]). This has prompted the call for a stronger public governance of the Internet and «to move beyond the crabbed vocabulary of competition law to develop a richer normative critique of search engine dominance» ([48]).

In particular, the most notable remedies proposed to tackle the phenomenon of search engine bias have been ([49]): (i) the creation of “federal search commission”, entrusted with the task of directly regulating search engines and monitoring their compliance ([50]); (ii) a “browser choice screen” ([51]); (iii) regulating the criteria whereby search engines rank search results ([52]); and (iv) disclosure and transparency mandates, «a more comprehensive governance framework which effectively addresses total policy concerns, yet retains the flexibility to respond to technological change and innovation» ([53]).

However, not only these remedies put Google at a competitive disadvantage (by depriving it of the efficiencies deriving from vertical integration and imposing expensive oversight and compliance obbligations), to advantage its competitors, but do nothing to maximize users’ welfare ([54]). They are also substantively or practically defective, since, respectively, the claimed benefits would no directly result from the remedy (or would even injure consumers) and there would be problems in terms of regulatory capture, rent-seeking and error costs ([55]).

Anyway, before evaluating any possible solution, it should be first assessed whether some form of intervention is actually needed in the first place.

 

6. Is really any intervention necessary? The “Nirvana Fallacy”

The very name “search neutrality” implies that search engine bias is detrimental, unfair, and, therefore, undesirable. Despite the two debates are not intetrelated, the expression “search neutrality” has prevailed over “search engine bias” due to the huge attention around the net neutrality debate. Such terminological shift has triggered three different issues: «First, it invites an apples-to-oranges comparison between net neutrality and search neutrality, even though they address different issues. Second, given that no one can agree on net neutrality’s definition, importing its semantic ambiguity into the search engine bias debate hardly improves the discourse. Third, the term “search neutrality” implies the existence of neutral search engines, but those are entirely mythical. Every search engine design choice necessarily and unavoidably reflects normative values» ([56]).

Currently, it is still an open question whether search engine bias results from a market failure or causes significant economic or social harms ([57]). In fact, besides the fact that freedom to conduct business should be enough to justify the decision of vertically integrated companies to promote their own goods and services, vertical integration may also be beneficial for consumers. For instance, it mitigates double marginalization, thus excluding the need to pay an intermediary and determining lower prices ([58]).

The alleged risk of foreclosure – that could result from Google’s promotion of its own services to the detriment of rivals that are prevented from accessing an input critical to competing –, could be countered by the argument that such competitive harm should be weighed against the competitive benefits and a number of market mechanisms limit search engine convenience in manipulating search results and engage in any exclusionary practice ([59]).

Not only a search engine may not be harmful for users, but it is doubted how to identify a bias, given that neutrality is mostly an aprioristic and abstract idea: «[r]elevance is a slippery and subjective concept, different for every user and every query, and there is no a priori way to define it; as with pro- and anticompetitive conduct, it can be nearly impossible to differentiate between “relevant” and “manipulated” search results» ([60]).

In other words, neutrality is not an achievable goal due to, first, the incapability of any search engine, for its very structure and functioning, to extract data in a strictly objective way, and, secondly, the dynamic nature of information and ever-changing Internet background, which make impossibile to have a pre-established and static set of results for any given query at any given time ([61]). Not surprisingly, Google’s algorithm is based on more than 200 different factors and is changed about 500 times per year ([62]). In light of all this, the idea of perfect neutrality corresponds to a “Nirvana Fallacy” ([63]).

 

7. Conclusions

In general, any state intervention in the market – whether corrective ex ante or repressive ex post – should be carefully assessed, also in light of the peculiar dynamics of the industry and the incentives to innovation ([64]). Since restricting vertical integration would be costly for consumers and would stifle experimentation and innovation in markets as dynamic as that of the search engine industry, neither regulation of search engine bias, nor antitrust intervention has been deemed justified on economic grounds ([65]). In addition, the implementation of search neutrality would have additional administrative and technical costs for search engines, besides potential error costs from incorrectly identifying results ([66]).

Even focusing just on the social and cultural implications of search neutrality, undeniabily, it is not for antitrust to address policy concerns which do not strictly relate to competion law ([67]). Especially so when the principle of search neutrality would be established through an exemplary antitrust action – which is also slow and expensive – against a single company and when this company, by the way, is exactly the one that has enabled the creation of a market of information on the Internet in the first place. This principle should not be an expedient for some companies to use, to their own benefit, a regulatory instrument which is actually intended to preserve the collective interest, rather than the individual one ([68]). Also considering the evidence that also Google’s competitors exercise editorial discretion and algorithmic control over what information is displayed to users and in which fashion ([69]).

Moreover, it should not be neglected that the principle of search neutrality could be, not only a “Nirvana Fallacy” – whereby an (inevitably) imperfect private business is rather seen as a perfect and impartial decision maker that keeps the gates to information over the Internet – but a «censorious temptation […] worth fighting against» ([70]).

 

---

[1] L.D. Introna, H. Nissenbaum, Shaping the Web: Why the Politics of Search Engines Matters, The Information Society, 2000, 16, 169-185, 171.

[2] M. Granieri, V. Falce, La search neutrality tra regolazione e abuso di posizione dominante, Mercato concorrenza e regole, 2016, 2, 289-312, 290.

[3] E. Goldman, Revisiting Search Engine Bias, 38 Wm. Mitchell L. Rev., 2011, 96-110, 97 ss.

[4] The insufficiency of current competition law with regard to search engines is claimed in F. Pasquale, Dominant Search Engines: An Essential Cultural & Political Facility, 401-417, in B. Szoka, A. Marcus (eds.) The next digital decade: essays on the future of the Internet, TechFreedom, 2010.

[5] For an interesting review of how the concept of information society can hardly be reduced to a single, universally accepted definition see F. Webster, Theories of the information society, Routledge, 2014.

[6] Following the corporate restructuring conducted by Larry Page and Sergey Brin in 2015, Google LLC is now part of multinational conglomarate headquartered in Mountain View (California) and has, as parent company, Alphabet Inc.

[7] S. Vaidhyanathan, The googlization of everything: (and why we should worry), University of California Press, 2011.

[8] S. Vaidhyanathan, supra, 3.

[9] As observed by M. Thompson (in In Search of Alterity: On Google, Neutrality, and Otherness, 14 Tul. J. Tech. & Intell. Prop., 2011, 137-190, 140): «Google is the sovereign, not only in metaphorical terms, but also in very real and unprecedentedly fundamental terms. Google gives and takes away the reasons whose number, variety, and relevance are increasingly determinant of the ways we author our lives-of our personal autonomy. […] We are not Google’s product; we are its subjects.»

[10] This term is used by Google to describe the main search results, in contrast to the sponsored links.

[11] This is also explained by the European Commission press release, Antitrust: Commission probes allegations of antitrust violations by Google, 30 novembre 2010, http://europa.eu/rapid/press-release_IP-10-1624_en.htm.

[12] Ex multis, M. Granieri, V. Falce, supra, 297-299 and J.D. Ratliff, D.L. Rubinfeld, Is there a market for organic search engine results and can their manipulation give rise to antitrust liability?, Journal of Competition Law & Economics, 2014, 1-25, 11: «the relevant market in which Google competes with respect to Internet search is at least as broad as a two-sided search-advertising market».

[13] E. Perotti, Google’s antitrust woes around the world, WAN-IFRA, 2017, 1-17, https://ssrn.com/abstract=3060298: 15.

[14] E. Goldman, supra, 102, where he explains that «Instead of a single set of ten organic results, Google now often shows numerous “zones” of search results on a single search results page. These include traditional organic search results, local results, news results, shopping results, video results, highlighted brands, results from sites in the searcher’s social network, a map for geographic results, and more».

[15] Ibidem. Referring to P. Parker account of TripAdvisor and Yelp complaints in Review Sites’ Rancor Rises with Prominence of Google Place Pages, in Search Engine Land, 31 January 2011, http://searchengineland.com/review-sites-rancor-rises-with-prominence-of-google-place-pages-62980.

[16] E. Goldman, supra, 105. The evolution of Google is well depicted also by D.A. Crane, After Search Neutrality: Drawing a Line between Promotion and Demotion, in 9 I/S: J. L. & Pol’y for Info. Soc’y, 2014, 3, 397-406, 400: «Google started out as an information broker akin to a librarian who could point customers to the books they were looking for. Google long assured its customers that its PageRank algorithm was a neutral information compiler, creating hierarchies of saliency based on the wisdom of the crowds. Google was just a mirror for the preferences of its users — it had no points of view itself. […] Over time, however, Google grew from just a librarian to an owner of some of the books in the library».

[17] On this, M.R. Patterson, Google and search-engine market power, Harvard Journal of Law and Technology Occasional Paper Series, 2013, 1-25, 6-7, acording to whom «if market share is not the source of power in the search-engine market, then what is? Market power can derive from the inability of consumers to evaluate the quality of the product they are receiving».

[18] Quality of the service is also determined by response time and ease of use.

[19] According to economists, this is one of the three categories of goods with respect to the possibility for consumers to assess the quality, together with “search goods” (i.e., goods whose  quality can be assessed by the customer before the purhase, e.g. a dress) and “experience goods” (i.e., goods whose quality can be assessed only during the use, e.g. a restaurant). On this, M.R. Patterson, supra, 11.

[20] E. Goldman, supra, 101, who also states that «it remains unclear why the organic search industry has consolidated so much or what is the socially optimal number of competitors and mentions as possible factors high costs in running a search engine, economy of scales or unfair conducts (Id., 98). Besides this, in theory, the search engine industry has no relevant switching costs (either in the form of charges or learning costs) for consumers wishing to recur to a different search engines; on this see M. Granieri, V. Falce, supra, 296.

[21] E. Goldman, supra, 101.

[22] Treaty on the Functioning of the European Union, OJ C 326, 26 October 2012, 47-390. On this, ex multis, R. O’Donoghue, J. Padilla, The Law and Economics of Article 102 TFEU, Hart Publishing, 2013.

[23] European Commission press release, Antitrust: Commission probes allegations, supra.

[24] Ibidem.

[25] Speech of Joaquín Almunia (Vice President of the European Commission responsible for Competition Policy), Statement of VP on the Google antitrust investigation, Eu Commissione press release_Statement of VP Almunia on the Google antitrust investigation, SPEECH/12/372, 21 May 2012, http://europa.eu/rapid/press-release_SPEECH-12-372_en.htm.

[26] Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ L 1, 4 January 2003, 1-25.

[27] Speech of Joaquín Almunia, Statement of VP on the Google antitrust investigation, Eu Commissione press release_Statement of VP Almunia on the Google antitrust investigation, SPEECH/12/372, 21 May 2012, http://europa.eu/rapid/press-release_SPEECH-12-372_en.htm.

[28] European Commission press release, Antitrust: Commission Seeks Feedback on Commitments Offered by Google to Address Competition Concerns, IP/13/371, 25 April 2013, http://europa.eu/rapid/press-release_IP-13-371_en.htm.

[29] See Joaquín Almunia, Statement on the Google Investigation, SPEECH/14/93, 5 February 2014 and the European Commission press release, Antitrust: Commission Obtains from Google Comparable Display of Specialised Search Rivals, IP/14/116, 5 February 2014, http://europa.eu/rapid/press-release_IP-14-116_en.htm?locale=en, with the accompanying MEMO/14/87, http://europa.eu/rapid/press-release_MEMO-13-383_en.htm. On this also E. Perotti, supra, 5-6.

[30] European Parliament, Resolution on Supporting Consumer Rights in the Digital Single Market (2014/2973(RSP)), B8-0286/2014, 27 November 2014, http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-2014-0071+0+DOC+XML+V0//EN.

[31] European Commission press release, Antitrust: Commission sends Statement of Objections to Google on comparison shopping service; opens separate formal investigation on Android, 15 April 2015, http://europa.eu/rapid/press-release_IP-15-4780_en.htm. The Commission further specified that the concerns (ii) to (iv) above were still under investigation and opened a separate investigation relating to the mobile operating system Android. As explained in E. Perotti, supra, 4, Google filed its official response on 27 August 2015 and reported its content in the article Improving quality isn’t anti-competitive, https://europe.googleblog.com/2015/08/improving-quality-isnt-anti-competitive.html.

[32] European Commission press release, Antitrust: Commission takes further steps in investigations alleging Google’s comparison shopping and advertising-related practices breach EU rules, 14 July 2016, http://europa.eu/rapid/press-release_IP-16-2532_en.htm.

[33] European Commission press release, Antitrust: Commission fines Google €2.42 billion for abusing dominance as search engine by giving illegal advantage to own comparison shopping service, 27 June 2017, http://europa.eu/rapid/press-release_IP-17-1784_en.htm.

[34]  Federal Trade Commission, Statement of the Federal Trade Commission regarding Google’s search practices in the Matter of Google Inc., FTC File Number 111-0163, 3 Janaury 2013, https://www.ftc.gov/system/files/documents/public_statements/295971/130103googlesearchstmtofcomm.pdf.

[35] More details in D.A. Crane, supra, 398.

[36] On this, E. Perotti, supra, 15.

[37] This report leaked in March 2015, as explained Id., 399.

[38] FTC Statement, supra, 3.

[39] D.A. Crane, supra, 401, who refers to U. S. v. Microsoft Corp., 147 F.3d 935, 948 (D.C. Cir. 1998).

[40] On the net neutrality debate see, ex multis, L. Belli, P. De Filippi, Net neutrality compendium: human rights, free competition and the future of the Internet, Springer, 2016.

[41] For an account of the different notions of search engine bias and search neutrality in the literature see G.A. Manne, J.D. Wright, If Search Neutrality is the Answer, What’s the Question?, 2012 Colum. Bus. L. Rev., 2012, 151-239, 155-163.

[42] O. Bracha, F. Pasquale, Federal Search Commission? Fairness, Access, and Accountability in the Law of Search, 93 Cornell L. Rev., 2008, 1149-1210.

[43] M. Granieri, V. Falce, supra, 292.

[44] G.A. Manne, J.D. Wright, supra, 158-159. See also M. Lao, Search, Essential Facilities, and the Antitrust Duty to Deal, 11 Northwestern Journal of Technology and Intellectual Property, 2013, 5, 276-319.

[45] Ibidem.

[46] J.D. Ratliff, D.L. Rubinfeld, supra. A problematic aspect consists in the emergence of competitors different from traditional search engines, namely, personal assistants, applications and social media: as  put by M. Granieri, V. Falce, supra, 301, «Di fronte a uno scenario così dilatato occorre chiedersi chi siano, dal punto di vista soggettivo, i concorrenti di Google. Il rapporto di concorrenza non può essere espanso al punto di considerare che i concorrenti di Google siano tutti coloro che svolgono attività via Web perché, per assurdo, tutti sarebbero concorrenti di tutti».

[47] S. Vaidhyanathan, supra, 12: «The imperatives of a company that relies on fostering Web use and encouraging Web commerce for its revenue may understandably morph into a system that privileges consumption over exploration, shopping over learning, and distracting over disturbing. That, if nothing else, is a reason to worry».

[48] F. Pasquale, supra, 402.

[49] These proposals are identified by G.A. Manne, J.D. Wright, supra, 206, and analyzed in more details at 210-238.

[50] This solution is supported by O. Bracha, F. Pasquale, supra, 1206-1207.

[51] This approach is encouraged by B. Edelman, Remedies for Search Bias, 22 February 2011, http://www.benedelman.org/news/022211-1.html, on the basis of the decision of the European Commission in case COMP/C-3/39.530 – Microsoft (tying), 16 December 2009, http://ec.europa.eu/competition/antitrust/cases/dec_docs/39530/39530_2671_3.pdf.

[52] On this again B. Edelman, supra.

[53] U. Gasser, Regulating Search Engines: Taking Stock and Looking Ahead, in 8 Yale J.L. & Tech., 2006, 201-234, 234-238. On this, see also B. Edelman, supra, and J. A. Chandler, A Right to Reach an Audience: An Approach to Intermediary Bias on the Internet, 35 Hofstra L. REV., 2007, 1095-1137, according to whom «To the extent that search engines and network operators seek to introduce other criteria of discrimination, they undermine the advances for free speech that have been achieved by the Internet. The fact that, in the past, we may have expected and tolerated the injection of the selection intermediaries’ own extraneous interests into the relationship between speaker and listener does not mean that we must do so now.” (Id. 1136).

[54] G.A. Manne, J.D. Wright, supra, 206.

[55] Id., 205.

[56] E. Goldman, supra, 107.

[57] G.A. Manne, J.D. Wright, supra, 154.

[58] Id., 179-180.

[59] G.A. Manne, J.D. Wright, supra, 180-181, mentioning «consumers’ ready ability to satisfy revealed preferences through selecting less-preferred search links». Among other things, the authors also explain that «with respect to product search, Google does not sell retail goods, and does not profit directly from its own product search offerings (which compete with frequent complainant, Foundem), instead benefiting by increasing its customer base and the efficacy of paid advertisements on its search pages that include links to its own price comparison results. It is thus a tenuous claim, at best, that Google profits more by degrading its search results than by improving them».

[60] Id., 162.

[61] M. Granieri, V. Falce, supra, 296.

[62] How Google Works, in Google Guide, http://www.googleguide.com/google-works.html.

[63] M. Granieri, V. Falce, supra, 296; G.A. Manne, J.D. Wright, supra, 200.

[64] Id., 297.

[65] G.A. Manne, J.D. Wright, supra, 239.

[66] Id., 163.

[67] To this regard, particularly convincing is M. Granieri, V. Falce, supra, 311: «È stato detto che l’Antitrust dovrebbe intervenire tutte le volte in cui è in discussione la libertà delle scelte individuali e la compromissione del consenso o la manipolazione dei dati personali sono esempi piuttosto cospicui di questa eventualità. Ma si tratta di un’opzione rischiosa per varie ragioni. In primo luogo perché l’eterogenesi dei fini, inevitabilmente connessa con un ri-orientamento strumentale dell’Antitrust non è eventualità contemplata dall’Antitrust stessa, dai suoi strumenti, dall’apparato istituzionale deputato alla sua applicazione. In secondo luogo, perché la dimensione aposterioristica dello strumento concorrenziale non è coerente con l’importanza degli interessi in gioco e l’esigenza di una tutela preventiva e generalizzata. In terzo luogo, perché l’uso politico dell’Antitrust avrebbe seri problemi di controllo dal punto di vista sia giurisdizionale sia dei processi democratici di creazione delle norme. Infine, dovrebbe sempre misurarsi l’impatto di una scelta siffatta e, alla luce di questo, vagliare la sensatezza di un utilizzo dell’Antitrust che rischia di compromettere un vantaggio competitivo legittimo, acquisito con investimenti e ingegno. Non vi è qui un suggerimento di ignorare il problema, ma soltanto un richiamo all’esigenza che l’Antitrust non si trasformi in una tecnica ibrida di controllo sociale, che si sforza di essere eclettica dal punto di vista dei vantaggi, ma finisce per essere entropica dal punto di vista dei risultati».

[68] Id., 300. According to the author, at 309, «non si può negare una qual certa schizofrenia istituzionale nel perseguire una politica della regolazione che guarda al cambiamento dei mercati e, al contempo, mantenersi fedeli ad una politica della concorrenza che assume il tempo come una invariante e che rischia di seguire un approccio grossolano all’Antitrust».

[69] G.A. Manne, J.D. Wright, supra, 238.

[70] «It can be tempting to believe that an omniscient regulator can improve search engines, but I favor a clear justification before we indulge this censorious temptation. Objectively, we are blessed with historically unprecedented free search tools that help create enormous social value. It would be easy for regulators, even well-intentioned ones, to inadvertently eliminate some of this value through misregulation. That outcome is worth fighting against». E. Goldman, supra, 109-110.

---

Autore