The search bias and multi-homing restriction investigations

There is no public notice of the hypothetical conduct being analyzed by a competition authority. Access to a dominant search engine’s data, however, is a remedy proposed by some

authors to possible anti-competitive conducts on the part of search engines, such as the search bias or the multi-homing restriction conducts.

Search bias allegations have been analyzed by some jurisdictions around the world, such as the United States (which closed the federal investigation without taking any measures against the company in 2013⁸²), Taiwan (closed a probe in 2015⁸³), Canada (discontinued the investigation in 2016⁸⁴), the European Union (fined Google for anti-competitive practice in June 2017⁸⁵), and Brazil (case still ongoing⁸⁶), among others⁸⁷. The search bias cases are usually raised by vertical search engines providers which accuse Google of demoting them in search results pages and putting Google’s own vertical search engines in the top results, thus diverting allegedly essential traffic from them. A vertical search engine (in opposition to a general search engine) is a search engine which focus on specific information, such as local businesses, flights, hotels, etc.

On the other hand, multi-homing restrictions happen when a dominant search engine restricts advertisers from simultaneously advertising in different search engines, precisely because of limitations in the use of campaign management softwares. This conduct has also been investigated in some of the aforementioned jurisdictions, such as the United States

82 FEDERAL TRADE COMMISSION. Federal Trade Commission. Google Agrees to Change Its Business Practices to Resolve FTC Competition Concerns In the Markets for Devices Like Smart Phones, Games and Tablets, and in Online Search, 3 Jan. 2013a. Retrieved from <https://www.ftc.gov/news-events/press-releases/2013/01/google-agrees-change-its-business-practices-resolve-ftc>. Accessed on 15 Nov. 2017.

Recently, the state of Missouri started an investigation which restarts some of the discussions closed in the federal level by the Federal Trade Commission, including the search bias allegations. See OFFICE OF THE MISSOURI ATTORNEY GENERAL. AG Hawley Issues Investigative Demands to Google, Inc., 13 Nov.

2017. Retrieved from <https://www.ago.mo.gov/home/breaking-news/ag-hawley-issues-investigative-demands-to-google-inc->. Accessed on 15 Nov. 2017.

83 WANG, Su-Wan; WANG, Elizabeth Xiao-Ru. Focus on Innovation: a review of the Taiwan Fair Trade Commission’s investigation on Google Maps. Competition Policy International, 17 July 2016. Retrieved from

<https://www.competitionpolicyinternational.com/focus-on-innovation-a-review-of-the-taiwan-fair-trade-commissions-investigation-on-google-maps/>. Accessed on 15 Nov. 2017.

84 COMPETITION BUREAU. Competition Bureau statement regarding its investigation into alleged anti-competitive conduct by Google, 19 Apr. 2016. Retrieved from

<http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/04066.html>. Accessed on 15 Nov. 2017.

85 EUROPEAN COMMISSION. Antitrust: Commission fines Google €2.42 billion for abusing dominance as search engine by giving illegal advantage to own comparison shopping service, 27 Jun. 2017. Retrieved from

<http://europa.eu/rapid/press-release_IP-17-1784_en.htm>. Accessed on 15 Nov. 2017.

86 CADE. Cade investiga supostas práticas anticompetitivas do Google no mercado brasileiro de buscas online, 11 Oct. 2013. Retrieved from <http://www.cade.gov.br/noticias/cade-investiga-supostas-praticas-anticompetitivas-do-google-no-mercado-brasileiro-de-buscas-online>. Accessed on 15 Nov. 2017.

87 In some jurisdictions, cases on search bias were raised by private parties. None of those cases resulted in a condemnation. On the English case, see UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND. England and Wales High Court of Justice. Case No HC-2013-000090. Parties: Streetmap.eu Limited and Google Inc., Google Ireland Limited and Google UK Limited. Judgement from Mr. Justice Roth. London, 12 Fev. 2016. Retrieved from <http://www.bailii.org/ew/cases/EWHC/Ch/2016/253.html>. Accessed on 15 Nov.

2017. On the German case, see STERLING, Greg. Google Wins Vertical Search Antitrust Case In Germany.

Search Engine Land, 7 May 2013. Retrieved from <http://searchengineland.com/google-wins-vertical-search-antitrust-case-in-germany-158544>. Accessed on 15 Nov. 2017.

(which closed the federal investigation in 2013 after obtaining compromises from Google⁸⁸), Canada (discontinued the investigation in 2016 also after obtaining compromises from Google⁸⁹), the European Union (investigation still ongoing, with no formal charges⁹⁰), and Brazil (case ongoing with formal charges already sent⁹¹).

Ioannis Linos and Evgenia Motchenkova state that “some form of intervention is needed in order to avoid possible abusive conduct by the dominant search engine that may lead to monopolization of this market”⁹², abusive conduct which could take form as multi-homing restrictions or a search bias conduct. One remedy proposed by the authors (based on Cédric Argenton and Jens Prufer⁹³) is requiring “search engines to share their data bases and data on previous searches”⁹⁴. It is important to notice that this is proposed as a remedy for an anti-competitive conduct - the mere refusal to share data itself not being explicitly given as an example of a conduct. In fact, a search bias conduct differs from refusal of access to search data in which it deals with vertical search engines requesting to be present in the top of the dominant general search engine’s result pages, and not with search engines accessing a dominant competitor’s asset (the search data) as an input. Access to search data as a remedy would solve a problem arising somewhere else - in the restriction of competition from vertical search engines⁹⁵ -, whereas a conduct of refusal of access to search data is enough of a problem if it involves only general search engines, no vertical search engine having to be involved. Similarly, multi-homing restrictions involve campaign management softwares apart from general search engines themselves⁹⁶.

88 FEDERAL TRADE COMMISSION, 2013a.

89 COMPETITION BUREAU, 2016.

90 EUROPEAN COMMISSION. Antitrust: Commission takes further steps in investigations alleging Google's comparison shopping and advertising-related practices breach EU rules, 14 Jul. 2016a. Retrieved from <http://europa.eu/rapid/press-release_IP-16-2532_en.htm>. Accessed on 15 Nov. 2017.

91 CADE, 2013b.

92 LIANOS, Ioannis; MOTCHENKOVA, Evgenia. Market dominance and search quality in the search engine market. Journal of Competition Law & Economics, v. 9, n. 2, p. 451, 2013.

93 ARGENTON, Cédric; PRÜFER, Jens. Search engine competition with network externalities. Journal of Competition Law and Economics, v. 8, n. 1, p. 73-105, 2012.

94 LIANOS; MOTCHENKOVA, op. cit., loc. cit.

95 The localization of the competition restraint in a search bias case can be seen in the press release of the European Commission decision to fine Google for its conduct, where it is stated that “it [Google] stifled competition on the merits in comparison shopping markets”. The comparison shopping services are the specific search services which allow “consumers to compare products and prices online and find deals from online retailers of all types, including online shops of manufacturers, platforms (such as Amazon and eBay), and other re-sellers”. EUROPEAN COMMISSION, 2017b.

96 Canada’s Competition Bureau referenced to the campaign management softwares in the figure of their developers: “The Bureau considered allegations that Google’s AdWords API Terms and Conditions prevented software developers that help companies manage their search advertising campaigns (known as ‘licensees’) from easily transferring information between Google advertising campaigns and advertising campaigns on competing platforms”. It was the said softwares that allowed advertising in search engines, and it was competition between them that would be directly restricted by the conduct. COMPETITION BUREAU, op. cit.