European Commission consults on commitments offered by Google

17 June 2013

Victoria Moorcroft, Rich Jones

The European Commission is proposing to accept commitments offered by Google in order to settle concerns that it may be abusing a dominant position in the markets for web search, online search advertising and online search advertising intermediation. The commitments are intended to give Google's customers and third parties greater freedom in their dealings with Google, and increase visibility of rival services.

The Commission's Concerns

The Commission has identified four aspects of Google's alleged behaviour, which it feels may be hampering competition and innovation in the field of online advertising. These are:

(i) favourable treatment of its own specialised web search services (e.g. Google News, Google Flights) in general search results;

(ii) non-consensual use of original content from third-party websites in its own specialised search results (e.g. use of The Guardian news articles in Google News);

(iii) agreements that tie third-party websites into obtaining the majority of their search advertisements from Google; and

(iv) restrictions on the transferability of search ad campaigns to rivals, for example on Google's AdWords platform.

The Proposals

In order to address the Commission's concerns without the Commission making a finding of an abuse of a dominant position, Google have offered to:

(i) label links to its own specialised services where they appear in search results, and physically separate them on the page (for example with a frame). They will additionally display three rival specialised services, and do so in a manner which is clearly visible to users;

(ii) provide an opt-out option to third parties from the use of their content, allow them to mark information in a way which means it will not be used by Google, and afford newspaper publishers increased control over the extent to which their work is displayed on Google News;

(iii) remove obligations to require third parties to source search ads exclusively from Google; and

(iv) remove obligations which prevent advertisers from managing their campaigns across competing platforms.

The Commission's preliminary finding stated that Google has 90% EEA market share for regular search functions, and great strength in its specialised searches, such as those mentioned above. From a user's point of view, these commitments could have the effect of increasing obvious choice, whereby they can see whether Google (or a rival) is promoting a result, or whether it appears through natural popularity.

From the point of view of those doing business (or trying not to do business) with Google, the proposals are intended to give greater contractual freedom to both control content and to control their relationship between Google and its rivals.

The Commission is currently consulting on Google's proposed commitments, seeking comment from interested parties. At end of the consultation period, and with reference to any comments made, the Commission will decide whether or not to make these proposals legally binding upon Google.

The initial indication from Commissioner Almunia was that Google's proposed commitments would not be sufficient and that it would be asked to improve them.