A man raises his hand in Google office.Mark Lennihan /Press Association. All rights reserved.
Large Internet corporations are
increasingly exerting an influence over the social and political aspects of our
lives as well as economically influencing the marketplace. Google is foremost
among them as a very large and very pervasive private actor in the online
space, providing everything from search to email to mobile operating systems.
Google’s business model may also be viewed
as particularly concerning from a digital rights perspective, given the vast
amounts of data created by and about its users which power its services. As the
Snowden revelations uncovered, national security
agencies have also tapped into this vast data bank under Google’s control
in less than legitimate and transparent ways.
What’s
legal?
What then about the law? Google’s business
practices have clashed with different laws in different countries. Google’s practices have also been curtailed
somewhat by European data protection
law,
such as by recognising
European citizens’ ‘right to be forgotten’ from its search results in certain
circumstances, and by curtailing
Google’s ability to combine user data from across its myriad services. But
even the EU’s data protection laws have been criticised by prominent legal
academics in the field. In Bert-Jan Koops’ view they only have a
marginal effect on real-world data processing practices. Lynskey
also calls them ‘permissive’ laws which allow for the collection of personal data (so long as certain
criteria are met) ‘endors[ing] the commodification of personal data’.
Data protection law is also not very
concerned with the size of the entity collecting and processing the data –
whether it is in a competitive marketplace or whether it is a monopoly.
Furthermore, human rights are generally only enforceable vis-à-vis the
nation-state rather than vis-à-vis private actors, despite these actors being transnational
corporations that are richer and more powerful than certain countries.
Combatting
collusion
Given Google’s ubiquity, one area of law which we might turn to is antitrust, or competition, law.
These laws are designed to combat the negative effects of monopoly power for
consumers, and to stop competitors colluding with each other. Indeed, the most
prominent example of legal proceedings against Google globally continues to be
the ongoing
European Commission antitrust investigation into its alleged abuse
of dominance in its search and advertising business.
The European Commission
started investigating Google after
complaints were made by Google’s competitors in the ‘vertical search’
price comparison markets: originally price comparison site Foundem,
ejustice.fr (a French legal search engine) and German shopping site Ciao (owned
by Microsoft).
Subsequently the
competitors have formed a lobby group, FairSearch.
The complaints against Google alleged that Google was using its dominant position in online
generic search and advertising to give it an unfair advantage in these other
markets. The investigation was opened in 2010 and has still yet to reach a
conclusion. During this time, the
US authorities have also considered Google’s conduct, and in 2013 concluded
that this conduct did not violate antitrust laws. This was because the design
changes Google adopted for its search results page (it displayed its own vertical
search results more prominently and had the effect of pushing the organic
search links further down the page) were done primarily to improve the
‘quality’ of its search product and the overall ‘user experience’.
However, the saga between Google and the European
Commission has been lengthy and drawn out. The Commission has twice rejected
offers from Google to change its behaviour. The Commission seemed to accept
Google’s third proposal in early 2014, yet bowed to lobbying pressure later
that year in appearing to reject the third proposal after the ‘politicisation’ of the
case within the EU. Google’s offers have involved potential changes to the
search results page, particularly as regards labeling of different kinds of
results and the more prominent placement of links to competitors’ services.
It has always been in Google’s interests to reach a settlement
with the Commission since otherwise the Commission would proceed with a
full-blown investigation, quite probably resulting in the imposition of
remedies as well as a large fine (up to 10 percent of global turnover).
Interestingly, it is actually unclear
whether Google’s alleged conduct vis-à-vis its competitors actually constitutes
a violation of EU competition law, as it does not fall within a
recognized ‘head’ of abuse of dominance. Even if the Commission concluded its
investigation and found that Google was abusing its dominant position, Google
would still be able to appeal the case to the European courts, which may take a
narrower view of the situation based
on previous monopolies case-law.
Surprisingly weak remedy
From the user perspective, however, given the size and
pervasiveness of Google, if the investigation outcome is that Google must only
make some relatively superficial changes to how its search results are
presented, remedy may seem rather weak. More transparency regarding Google’s
algorithm and inner machinations does not seem to be on the table (and would
likely be stymied by trade secrets protection), nor are any measures which
would tackle Google’s vast collection of user data (the reforms to European
data protection law in the form of the new Regulation will not tackle this
either).
This may seem surprising to many, given Google seems to
be obviously a monopoly. But EU competition law has been influenced by the same
neoliberal trends that have permeated economic regulation more generally, and
accordingly only operates in a minimalist way.
Yet in the past, competition law in Europe,
especially Germany, was influenced by ordoliberal
currents which were suspicious of large accumulations of private power for both
the economic and political influence that such entities could wield. In its
early history, US
antitrust law also was suspicious about private power’s political as well as
economic influence. Google’s ever-expanding size and portfolio can be conceptualised as exactly
the kind of private power accumulation which concerned the ordoliberals.
Indeed, Google’s vast (and ever growing) concentration of power is political as well as economic, with large amounts of
its money being invested in political lobbyists and even
funding research at universities and think
tanks. This influence may pose problems for the democratic process and
democratic oversight over such a large company.
Yet, throughout the
Google investigation the Commission has said very little about Google’s impact
on its users’ digital rights.
Regulatory tension
However, the European Data
Protection Supervisor in 2014 did make a connection between Google’s
monopolistic size and its practices of gathering large amounts of user data,
calling for competition analysis to incorporate data protection violations into
its conception of ‘consumer harm’.
But EU competition law’s
‘More Economic Approach’ means that it is difficult to take into account
values, such as human rights, in the largely quantitative and financialised
analysis of whether anticompetitive conduct by a monopoly has caused consumer
harm.
Indeed, ‘ the pursuit or
consideration for other non-economic goals under competition law is at odds
with neoliberalism’, and so likely to give rise to much regulatory tension
if competition bodies find themselves under pressure to apply non-economic
values that may be encompassed by human rights – in both this case against
Google and in other investigations involving other rights beyond the digital.
So
who benefits?
But why has the Commission been pursuing Google, especially if it’s
not clear that Google is committing a recognised abuse of its dominant position
or that the investigation will result in a good outcome for users?
The explanation may be found in
factors such as: European protectionism when faced
with an American corporation (although some of Google’s competitors which
have been making the complaints are also American); the Commission’s own
political concerns, such as being seen by the general public to be a relevant
institution by acting in the face of what many perceive as a pernicious monopoly;
and lobbying from a coalition of European
‘digital companies’ mainly from France and Germany, and some domestic
politicians from these countries who also urged the Commission to reconsider
the commitments previously offered by Google.
The outcome of the European Commission’s
investigation into Google remains to be seen. But it seems clear so far that
the Commission has not been overly ‘invasive’ of Google’s business practices,
and particularly those which pose the most concern for users. Furthermore, it
is far from clear that Google’s overall power will be dramatically weakened as
a result of the investigation. Instead, it may be that it is Google’s competitors who benefit in the
end, rather than users.
Where does this leave us, the users?
Essentially, caught between one area of law, competition, which aims to tackle
monopolies but is not good at taking our digital rights into account; and another
area of law, data protection, which (as the name suggests) is supposed to
protect our data but is not very concerned with monopolies collecting vast
amounts of data so long as its criteria for collection and processing are met.
The EU’s Charter of Fundamental Rights
has been invoked in a number of recent cases (Scarlet
v SABAM, Digital Rights Ireland, Schrems)
to protect personal data and curtail state-directed surveillance and monitoring
via private companies. However, it is far from clear that a private company,
collecting user data for its own ‘economic
surveillance’ purposes would be treated in the same way.
Without a more ‘joined up’ EU legal
and regulatory framework which integrates both digital rights and economic
concerns when it comes to Internet monopolies such as Google, users may have to
look for solutions outside of the law to protect their privacy, enhance their
free expression and promote their economic autonomy.
This article is based on the discussion about Google
in Angela Daly’s forthcoming book Private Power,
Online Information Flows and EU Law,
which will be published in late 2016 by Hart.
