Out-Law News 4 min. read

UK search engine details 'remedies' it would like Google to adopt to address anti-competitive search practices

Google's spam website rules unfairly impinge on the company's rivals in the vertical search market, a UK search engine has claimed.

Foundem made the claim as it published a framework of proposed remedies (13-page / 996KB PDF) it would like to see the European Commission and Google agree on in order to address alleged anti-competitive behaviour by the internet giant.

Google demotes the position of websites on its search rankings if they "lack original content" or have a "high proportion of 'copied' content" and if their "primary purpose" is to "deliver users to other websites," Foundem said. However, those characteristics are "inherent" in "vertical search services", the UK firm said. It called on Google to be prohibited from being able to "deploy penalties that demote legitimate websites for illegitimate, anti-competitive reasons". 'Vertical search services' are focused on topic-specific search engines.

"Google’s stated justifications for penalising many of its vertical search competitors are not legitimate; they are merely a pretext to disguise anti-competitive abuse," the company said. "There is a need to differentiate between legitimate and illegitimate penalties or criteria for penalties."

"We are not suggesting that characteristics such as a lack of original content cannot be used as part of a broader analysis – one signal which, when combined with other signals, can be interpreted collectively as a sign of low quality or spam. But we are suggesting that these characteristics, which are inherent to all vertical search services (including Google’s own), cannot on their own be used to justify the systematic demotion of Google’s competitors," it said.

Foundem is one of a number of search engines to have submitted complaints to the European Commission over alleged anti-competitive behaviour by Google in the internet search market. In May the Commission called on Google to propose changes to its search practices after deeming that the company had abused its dominant market position in the industry.

Foundem has now outlined the "remedies" it would like to see Google adopt. Adam and Shivaun Raff, the founders of Foundem, said that the European Commission must seek "remedies" that prevent Google from artificially promoting its own services as well as penalising the rankings of rivals in its search results.

"Remedies that end Google’s ability to systematically self-promote its own services, but do not end its ability to systematically penalise, demote, or exclude those of its competitors are no remedies at all," they said. "Absent Universal Search, for example, Google could simply amplify and/or re-calibrate its arsenal of penalty algorithms and ranking signals to achieve a similar anti-competitive effect."

"Similarly, remedies that end Google’s ability to systematically penalise, demote, or exclude competitors through illegitimately targeted penalties, but do not end Google’s ability to systematically self-promote its own services will not solve the problem either. Absent anti-competitive penalties, Google could simply dial-up the 'aggression' of its Universal Search mechanism, inserting its own services even higher up the page than it does already and employing even more enticing display formats reserved exclusively for its own services, to achieve a similar anti-competitive effect," Adam and Shivaun Raff added.

Foundem said that Google should have to "clearly and conspicuously label when it inserts its own content or services into, alongside, or around the organic, 'natural' search results" in the way it currently does when displaying paid advertisements alongside the results.

It said that Google artificially promotes search results for its own content and illegitimately demotes the rankings of its rivals. Google has claimed that its "self-preferencing" is justified on the basis that the information it provides are "answers" to user requests, according to Foundem, but the UK company said that Google should generally not be able to provide links alongside any legitimate "answers" it provides.

"In most cases, Google’s Universal Search mechanism inserts prominently placed links to Google’s other services, not answers," Foundem said. "Users have to click on these links to find answers, just as they do on any normal, organic search result. Understanding this crucial difference is key to understanding the financial incentive underpinning Google’s anti-competitive behaviour."

"Examples of 'inserts' that can legitimately be considered to be answers include a summary weather forecast, a stock quote, and a dictionary definition. Examples of 'inserts' that cannot legitimately be considered answers include links to a price comparison service, links to a flight search, and links to a mortgage comparison tool," it added. "If links must be inserted (such as for further details, or for the full text of an article, etc.), then these links must not be revenue-bearing and must not take users to pages or services that Google owns or has a financial interest in."

Foundem said that Google should not be able to display information about is own services in a more "enhanced" or "enticing" format than the way it displays rival providers' content.

Google should also have to apply the rules over the way it indexes results in its search rankings the same way for its own content as it does for its rivals, it said. Any exemptions to this rule must be legitimate and pro-competitive in nature, it added.

"For example, exempting sites from a particular negative signal, demotion, or penalty simply by dint of their age or the strength of their brand-name could, without extreme care, systematically punish novelty and innovation while rewarding and reinforcing incumbents and the status quo," it said.

Foundem said that Google had to be more open about the existence of its penalties and the "rationale" behind when they are applied, and that there should be a "timely and effective appeals process" to enable website operators to challenge sanctions the search engine giant imposes.

"Sites that are suffering from any kind of penalty must be notified about the status and expected impact of the penalty as well as provided with an explanation of the rationale behind it," it said.

Google must also be prohibited from altering the way that it "crawls" website content in order to "index" the information for searching in a way that is anti-competitive, Foundem said. In addition, the company said that Google should not be able to implement more "subtle" measures that stifle competition, such as through "traffic rationing".

Foundem want an "independent technical oversight panel" to be formed to ensure Google implements the remedies and to rule on disputes over Google's penalties regime. Google should also provide users, website operators, the oversight panel and others with an option to access "unfiltered" search results to enable them to review the "efficacy and legitimacy" of Google's filtered results, it added.

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