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EU Leans Toward “Labeling” To Resolve Antitrust Claims Against Google


Those hoping for aggressive regulation or changes in the way Google conducts its search business in Europe will likely be disappointed. A new interview with EU Competition Commissioner Joaquín Almunia hints at settlement proposals and remedies now being considered in the Google antitrust case. And, they will probably look a lot like what came out of the FTC earlier this year.

The interview, published in a New York Times article triggered by the filing of a new antitrust complaint over Android, offers some insights into the state of settlement negotiations between Europe and Google.

The central contention in the antitrust investigation is that Google harms competition by directing traffic to its own services, through preferred placement. All other claims are essentially secondary.

The FTC totally declined to pursue claims of “search bias” favoring Google’s “own verticals.” The law was essentially on Google’s side in the US. But the EU has more flexibility and has indicated it will require some sort of concession or remedy to the perceived problem of “Google diverting traffic” to its own properties.

It appears that the EU is looking at a “labeling” approach that designates Google results as such:

In Monday’s interview, Mr. Almunia said Google needed to offer the commission a solution where choices between Google-branded search results and those of its competitors were clearly visible within the search engine both on desktop computers and on mobile devices.

“I don’t know if you should call it labeling, or whatever, but they need to distinguish,” Mr. Almunia said.

We can certainly debate the merits or legitimacy of “search bias” but it appears there will be some effort to address it — and “labeling” looks to be the designated compromise. What remains to be see is what that looks like precisely.

The Almunia interview also says there will be no attempt to regulate Google’s algorithm. The Competition Commissioner also suggested that, as in the FTC settlement, there would be selective opting out of content crawling. Google won’t be allowed to “involuntarily scrape” competitor content as a condition of inclusion in general search results.

Almunia deflected criticism that Europe was simply try to “protect competitors,” something the FTC explicitly stated US antitrust law was not intended to do.

Like the FTC settlement there will also probably be “fair licensing” requirements imposed on Motorola patents. In the US case Motorola was found to have unfairly used its “standards essential patents” in an abusive way to attempt to block rival products including the iPhone. That resulted in a consent decree that can be enforced through subsequent litigation.

In short, other than SERP labeling, the EU settlement with Google will probably track the FTC settlement terms fairly closely. However, the new Android complaint could become a separate case or part of the impending settlement, expected to be announced in Q3 this year.

 

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