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Google: Should there be laws to manage such power?

There is no question that Google has the greatest share of the search engine market.  In December 08, Hitwise reported that Google had a 90.39% share of the market in the UK, and in February 09, comScore reported a 63.30% market share in the US. This article looks at why this is of interest to us, legally.

Search engines like Google are not mere indices of websites - they are far more dynamic. James Grimmelmann defines the search engine as combining:

“its own knowledge of available content with user queries to provide recommendations to its users”.

Inevitably, this means that Google channels its users' attention to certain information and sites - commercial, political and social. By influencing and controlling what users see, search engines potentially can operate a paternal function. Inadvertently or otherwise, their algorithms decide what websites and thus what information users can view.

So how is this dangerous? Why might this be of interest to law makers?  We live in an ‘Information Society' where information has become a commodity. Those that control this information, whether access to or delivery of it or its content, are in key positions of power. When a search engine has a market share of 90%+ like Google, it follows that they have a lot of power, and a lot of power is open to abuse. If information can be manipulated, then it can be manipulated to serve a political, commercial, moral, religious or social agenda. Furthermore, the manipulation of information can infringe on peoples' fundamental rights, like freedom of speech and expression. Shouldn't the law be interested in supervising the use of that power?

Search engines manipulate rankings in two ways. They remove links from their index in response to complaints. They also remove links of their own choice. But ask any SEO expert and you'll hear that there is no definite rules for what will, and will not, be removed.

Generally Google says it will not remove a link from its index unless the web owner restricts access to their site. Google provides tools through its ‘Webmaster' suite to allow users to block off folders, pages and indeed whole websites from being spidered.

But Google has also removed sites that it deems offensive. Emily Laidlaw reports:

“Last year, Google received complaints about killbattyn.com, a blog hosted on its http://blogger.com service, which advocated the killing of gays and lesbians. Initially Google refused to remove the site on First Amendment grounds, stating that ‘[t]here are many things on the Web which groups find upsetting or distasteful … It is up to governments to decide at the end of the day where freedom of speech begins and ends.' Effectively denying any role in disseminating the hate material, it ‘passed the buck' to government. Google finally removed the site relying on http://blogger.com's terms of service, but refused to elaborate further on the specific terms that it deemed were breached. This, however, is an instance where it acted as a host of the content provider rather than as a search engine. With regards to search results, Google was prompted to issue a statement regarding anti- Semitic sites topping the rankings when the search term ‘Jew' was used, explaining why this might occur and expressing condemnation, but stopping short of removing the site”.

The question that follows from this is, who is Google to make judgements about what information should, and shouldn't, be presented to its viewers? Although Google acknowledge that public interest groups periodically urge them to remove particular links or otherwise adjust search results and they say that their own policy is to keep as comprehensive as possible and not to remove something just because it is unpopular, in the same breath, they reserve the right to remove sites that don't comply with their policies which include, for example, morally questionable sites.

Controlling what information we see is not the only issue here. Since Google reserves the right to artificially adjust the way a website is ranked in the search engine, such changes to company websites can have a damaging impact on the company behind the site.  Laidlaw reports:

“The power of search engines to punish website owners for behaviour it deems objectionable is evident in cases such as Search King Inc. v. Google Technology Inc. Search King introduced PR Ad Network (PRAN) in 2002 to act as a middleman between clients and third party sites highly ranked by Google's algorithm. The purpose was to improve their clients' rankings in Google search results. PRAN would arrange for the advertisement of the clients on these third party sites. This was effectively a link farm. Google ranks websites between 1 and 10, with 10 being the best ranking. In 2002, Search King's ranking decreased from 8 to 4, while PRAN's ranking went from 2 to being eliminated completely from the ranking. Search King soon after filed a lawsuit alleging tortious interference with contractual relations. Google argued that its PageRank is protected speech under the First Amendment. US District Court Judge Miles La Grange reasoned that PageRank relates to matters of public concern, but that it is impossible to prove that the ranking given to a web site is false. She dismissed the action, concluding that the search results are opinions and accordingly protected speech. The opinion Google was expressing was as to ‘the significance of particular web sites as they correspond to a search query.' Without access to the algorithms and reasons for manual manipulation decisions, plaintiffs cannot evidence that a drop in rankings is untoward or illegitimate. Categorizing search results as expressions of opinion exacerbates this, because it further insulates search engine providers from accountability for their products. Arguably, search engines can now engage in openly discriminatory manipulations under the protection of it being opinion, although this would be a public relations nightmare”.

The lack of transparency in Google's algorithms means that companies cannot assess whether Google is punishing them, because they do not know what their page ranking should be. Companies therefore have no way of proving Google is abusing its power in natural search engine results.

 

Abuse of a dominant marketing position

Whilst it may be difficult to prove to what extent Google is manipulating the natural search engine results, it is more obvious in relation to their paid ‘Adwords' facility, and indeed, there may already be laws to address these issues. The Adwords facility allows users to pay to be at the top of search engine results. However, not all advertisers are permitted to appear - Google has a list of policies which 'screen out' certain websites which it deems morally questionable. Unfortunately it doesn't police that ban very well - some websites slip through the net and are permitted to advertise for many months despite contravening its advertising policy. Permitting a select few sites that contravene the policy to advertise, whilst blocking others, means some companies are given a competitive advantage over others.

Google's ‘Adwords' agreement is subject to English law, and thus is also subject to European Law which under the EC Treaty, Article 82, prohibits monopolies and prevents the abuse of firms' dominant market positions.

(12) Abuse under Article 82 includes, inter alia,

(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;

…

(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage.

Google would certainly qualify as having a dominant position in the UK, as a company that behaves “to an appreciable extent independently of its competitors, customers and ultimately of its consumer”. As identified earlier, they have a substantial market share. Under EU law, a very large market share raise a presumption that a firm is dominant, and where a firm has a dominant position, because it has beyond a 39.7% market share, then there is “a special responsibility not to allow its conduct to impair competition on the common market”.

So Google, a holder of a dominant position in the search engine industry, has banned some companies from advertising their services on one hand, but continued to allow certain selective companies to advertise on the other. Google's ban has been in place for almost two years and yet it has not yet implemented adequate procedures that prevent ads which don't comply with its policies from being filtered out before they go through the approval process. This is arguably a distortion of competition.

In summary, with a substantial market share, Google has the power to promote or quash opinions and information, and to effectively bolster or destroy the success of a company's website. Should such power go unchecked? You decide.

 

References:

• Grimmelman, J ‘The Structure of Search Engine law' (2007) 93 Iowa Law Review 1 at p 6
• Laidlaw, E ‘Private Power, Public Interest: An Examination of Search Engine Accountability' (1 March 2009) International Journal of Law and IT, IJL&IT 2009 17 (113)

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