Wednesday, May 23, 2012
Posted by Mark Patterson
Much of the disagreement in this blog symposium seems to arise from different assumptions regarding what Google might have done. Is the concern merely that Google has provided “non-neutral” results, but in a way that can be defended as at least intended to serve users (James Grimmelmann, Daniel Crane, Eugene Volokh)? Or is it that some of Google’s search results might be altered purely to gain a competitive advantage (Frank Pasquale, Allen Grunes, Mark Patterson)? The recent actions by the agencies in the U.S. and the EU suggest that they, at least, think the concerns are serious.
Suppose, sharpening the hypotheticals of Pasquale and Grunes, that behind Google’s closed doors, its search engineers said things like “Yes, I know site A is better, but we’ll downgrade it because it’s becoming a potential threat to us.”
This hypothetical is worth considering because Google’s search decisions are made behind its closed doors. For that reason, it’s easy to assume that it doesn’t make them for anticompetitive reasons. And maybe it doesn’t. But unlike other antitrust exclusion cases, where refusals to deal and exclusive contracts take place in public markets, exclusion by Google would never come to light without an investigation. In this respect, it’s interesting that for its Google inquiry the FTC has hired Beth Wilkinson, an attorney with experience in internal corporate investigations.
Some of the contributors to this symposium (Adam Thierer, Marvin Ammori, Mark Jamison) suggest that anticompetitive actions by Google would be constrained by competition. But what if, as Patterson suggests might be possible, another Google engineer responded to the statement above with “OK, but don’t downgrade site A so much that it will be obvious. Just do it enough to hurt.”
It seems to me that these facts, if they were real, could make out an antitrust violation. The conduct would be exclusionary, it would be anticompetitive in the sense that consumers would be injured (even if they didn’t know it), and it would lack a legitimate business justification.
But what about the First Amendment? I’m not sure that Eugene Volokh believes that downgrading results as this hypothetical suggests would be protected speech, given that he relies on the assumption, which would be false on these hypothetical facts, that search engines “aimto give users what the search engine companies see as the most helpful and useful information.” Regardless, I’m confident that antitrust courts would have no trouble with the First Amendment on those facts. The white paper by Volokh and Donald Falk appears to concede that if speech is not the exercise of editorial judgment, then antitrust can step in, as in Lorain Journal (and in other cases not mentioned in the white paper, like Providence Journal and the cases arising from the AMA’s campaign against chiropractors).
It’s true, of course, that a case against Google, even on the facts hypothesized here, would be challenging. Whether such conduct would be sufficiently exclusionary to bring Sherman Act § 2 or Article 102 TFEU into play is a difficult question (Marino Lao, Ammori). Devising remedies would be problematic (Pasquale, Patterson, Eric Clemons). And more ambiguous conduct might not be illegal (Grimmelmann, Crane, Thierer).
In the end, though, it seems that given how little we know about what goes on behind those closed doors at Google and given that recent events give us little reason to trust it, it is worth considering how antitrust might respond to anticompetitive conduct. It’s remarkable to see scholars dismissing antitrust concerns without even knowing what facts the investigations will reveal.