Out-Law News 2 min. read

Google makes search practice concessions in a bid to resolve EU competition concerns

Google has offered to differentiate results for its own "specialised search services" from others displayed in its search engine listings as one of a number of measures aimed at addressing EU competition concerns.

Last May the European Commission called on Google to propose changes to its search practices after preliminarily deeming that the company may have abused its dominant market position in the industry.

Now the Commission has revealed the measures that the internet giant has proposed to remedy the concerns and given the company's rivals a month to submit their views on the matter.

Under the proposals Google has put forward, the company would "label promoted links to its own specialised search services" to allow users to "distinguish them from natural web search results". To help with this differentiation Google has said it would use "clear graphical features (such as a frame)" to separate the links to its own services from links to others'. In addition, it said it would display links to "three rival specialised search services" in close proximity to those for its own services. The rival links would be displayed in a way that makes them "clearly visible to users".

Website operators would also be free to stop Google referencing their content in its "specialised search services", such as Google Shopping, Google News and Google Hotel Finder. The measure would allow rivals to elect for their content to be displayed within Google's general search engine results, but not within the specialised indices the company operates. Newspaper publishers will have the option of selecting which content is displayed in Google News results on a "web page per web page basis", according to the proposals.

Google has also offered to end the practice of obliging publishers to "source online search advertisements exclusively from Google" under the terms of its agreements with those publishers. It will also allow advertisers to link search advertising campaigns deployed on rival platforms with Google's AdWords offering. The Commission said Google has placed contractual restrictions on firms to prevent them doing so.

"The Commission is concerned that these restrictions create artificial switching costs that discourage advertisers using Google's AdWords from running parallel online search advertising campaigns on competing platforms, thereby reducing consumer choice," the regulator said. "These restrictions do not yield any benefits for advertisers or consumers, but stifle the development of innovative campaign management tools."

Google has offered to observe these altered search and advertising practices for five years (61-page / 2.48MB PDF) within the European Economic Area. An independent monitoring trustee would be appointed to report on Google's compliance with the measures during the period, whilst the Commission has said that it could legally bind Google to the commitments following the consultation with the firm's rivals.

However, FairSearch, a group that represents Microsoft, Foundem and a number of other of firms that have submitted complaints about Google's search practices, said that Google's "own screen shots" to illustrate how its proposals would work demonstrate that the internet giant "seeks approval to continue preferential treatment for its own products".

FairSearch said that it would conduct a detailed study of Google's proposals and "offer an empirical analysis based on actual tests". However, it said that the proposed changes "appear to fall short of ending the preferential treatment at the heart of the Commission’s case based on formal complaints from 17 companies".

Earlier this year the Federal Trade Commission (FTC) in the US cleared Google of having engaged in "search bias". It said that the internet giant does not unfairly harm competitors in the way it calculates how its search engine results should be displayed. The regulator determined that "innovations" Google has introduced into the market were justified, even though rivals may have been harmed by the measures.

However, competition law expert Guy Lougher of Pinsent Masons, the law firm behind Out-Law.com, previously explained that it is possible for the European Commission to reach a different view on the legality of company practices from the FTC based on the same information before them as a result of different "legal tests" being applicable in the different jurisdictions.

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