THEY MOVE SLOWLY in Europe. On Wednesday the European Commission sent a formal “ Statement of Objections” to Google alleging that the Mammoth of Mountain View violated antitrust law. The investigation itself dates back to 2010; it has been shambling along for longer than The Walking Deadhas been on air.
You might think that after all this time, the Commission must have have come up with something damning. But you would be wrong. It hasn’t said much we didn’t already know back in 2013 when the Federal Trade Commission closed up its own investigation with a statement that Google’s practices were not “demonstrably anticompetitive.” The Commission could just have Googled for “google ftc antitrust” and saved everyone a lot of time.
The Commission’s public statement does a good job of explaining how Google helped itself and hurt its rivals in the comparison-shopping space, but it sidesteps the real issue in the case: whether Google helped or hurtits users. Google hasn’t been entirely aboveboard about how it tweaks its search algorithms. But it’s not clear that any shadiness on Google’s part translates into real consumer harm. Has Google hurt users? Maybe. Has the Commission demonstrated it? No.
Google is alleged to have hard-wired Google Shopping results so they show up “prominently,” and to have applied a “system of penalties” to competitors’ sites so they drop down further on the first page, or off it entirely. This of course drives traffic to Google Shopping, which is, between you and me, not exactly the sharpest knife in the Google drawer, while draining the audiences for the services that compete with it. The result is to leverage Google’s immense market share in general search (over 90 percent in Europe) into dominance in other areas.
This sounds dastardly, but favoring one’s own business over competitors is not by itself an antitrust problem. That’s just normal competition. No one complains that Target doesn’t include Wal-Mart coupons in its mailers. In Google’s view, “competition is just one click away”; anyone who wants to use Foundem can just type F-O-U-N-D-E-M-DOT-C-O-DOT-U-K into the location bar. Heck, anyone who wants to use Foundem can type F-O-U-N-D-E-M into Google and it’ll work. It’s not as though Google is sending goons around to beat up anyone who tries to use another site, or making users sign contracts to comparison-shop exclusively through Google Shopping.
Neither framing is quite right. The real question is relevance. Don’t cry for Foundem just because it shows up further down in Google search results than Google Shopping. Cry for Google users who had a harder time finding what they wanted because they had to wade through less relevant search results. Maybe that’s Google Shopping; maybe it’s Foundem. Google says its results are better; its competitors disagree. The only way to say which of them “should” show up at the top is to find out which results search users prefer.
A leaked FTC staff report obtained by the Wall Street Journal sheds some light on the question, because it includes evidence straight from the mouth of the only horse whose opinion really counts: Google users. A footnote shows that its search quality raters gave slightly higher scores to its results when it demoted some comparison shopping sites. So on the crucial questions, gentlemen prefer blondes and Google users prefer Google’s slate of search results.
That bottom line, however, conceals some significant shadiness on Google’s part. It experimented with different ways of demoting rival comparison shopping sites until it found one that its raters liked. And it experimented with different ways of asking raters their opinions until it found a metric on which competing sites did poorly. So Google does have evidence (or did in 2006 and 2007, when it ran these tests) that users preferred demoting rival shopping sites, but only after shaking its Magic 8-Ball enough times to squeak by with “Signs point to yes.” Sketchy behavior, to be sure, but it also doesn’t establish the crucial point: that consumers really are ending up with search results they like less.
The Commission takes a stab at this. It says that Google favors Google Shopping “irrespective of its merits” and that “users do not necessarily see the most relevant comparison shopping result.” A lawyer would call both of these phrases “artfully worded.” They don’t say that users do end up with less relevant results, only that they might. That’s a slender reed for such a high-stakes case. Proving that Google hurt consumers and not just competitors will take more face cards than the Commission has laid down so far.