Issue 10, Semester 1
By Nick Parry-Jones
As talk of Facebook and its dominance of consumer eyeballs and advertiser budgets swirls, it’s important to remember that Mark Zuckerberg’s social network is only one of the tech giants in the ecosystem. The other is Alphabet, whose most familiar product is the search engine Google.
The current problem facing Facebook comes from a team of people manipulating permissions, and in some cases stealing those permissions to access user data and advertise precisely. However, no Google search users are trying such a thing (here I’d like to note that De Min reported on Cambridge Analytica well before the scandal broke.) Rather, they are services utilising Google legally, as a platform to conduct bad behaviour.
A big part of this is to do with Google’s “shopping” tab. I’m shocked that anyone ever uses this part of the site - apparently with good reason. The tab is flooded with bait-and-switch scams where products are advertised at low prices, are ordered and paid for, but never arrive. When consumers try to chase this up, the retailer’s site has disappeared, along with their money. Google says it’s trying to police this scam, but also claims that it’s ultimately not their problem. This claim holds weight: after all, they are just a platform. However, we should remember that eBay and Alibaba have sophisticated checks and balances to prevent this practice. This is a responsible policy for those wanting to operate in the e-commerce space.
Shopping comes under heavier scrutiny when you look at the European Union’s antitrust case against Google, where it was found that Android phones preference Google products in price comparison searches. Having previously forced the search engine to expunge personal records on request, the relatively new EU Data Protection Regulation puts further limits on the collection, maintenance, and protection of personal data. This resulted in a 2.7 billion dollar fine for the company, but Google kept on trucking.
Having recently received another fine for a different comparison preference bias operation in India, another lawsuit really shows the power of Google’s Search rank function, and how it destroys businesses. Edible ® Arrangments makes bouquets you can eat. Their name, is a trademark. But the frequency with which this phrase appears means that it does not acquire any special Google ranking, even though a consumer may be searching the name to find their site and their product. Instead their competitors, whom make edible bouquets but not Edible ® bouquets, show up before them. If search rank is contingent on the commonality of the word, then why bother registering the trademark at all?
This is where the case for Google as a monopoly becomes apparent. In their hidden search algorithm, they can decide whether your company lives or dies. Any reflective person knows that no one goes beyond the third page, and in theory there are good companies there, but how do we regulate a sorting service? Would this lead to regulation of the phone book, too?
Antitrust or competition law is typically used to break up a player that is too strong in the market, primarily because they have been innovative and successful. Standard Oil dominated the latter part of the 1800s and made oil cheap for the consumer, essentially inventing the kerosene lamp and pushing for the development of the automobile before its operations were curbed by White CJ in 1911, inviting other operators in the space. Similarly and perhaps ironically, the 1990s antitrust case against Microsoft is what gave Google its start. The ruling handed down there held that Microsoft’s internet had to allow for all actors, which would eventually help the up-and-coming Google eclipse Bill Gates’ software giant.
With control over what gets shown to whom, a secretive practice of ranking, and a platform lousy with scams, it’s clear that governments must do something about Google. But what? Unlike Standard Oil and Microsoft, Google does not sell a product that can be split among retailers: its power comes from its size and overwhelming correctness. That utility would be damaged if it were partitioned.
One French report suggests consumers should be able to buy blank devices and choose apps as they go along. This is already possible: you can wipe a phone’s memory and root it on purchase. However, the subsequent process of setting up a phone free of proprietary money-grabs is so time-consuming that I’d rather just live with a tracking device in my pocket.
NPJ is a 4th year student and was lucky enough to be involved in the Google litigation in India as part of Law and Legal Practice in Asia (LAWS90006).