Google, ‘gatekeeper of the internet’, under scrutiny

It’s likely you’ve already used Google today. Perhaps you used it to bring you to this very page. But pause for a moment: did you consider using an alternative search engine?

For most of us, the answer would be “no”. Perhaps you’re just used to ‘googling’ everything – after all, it’s been more than 20 years since the colourful search engine first hit our shores. Or maybe it’s because when you open your device, it’s the first – and only – option to pop up.

Certainly, when it comes to tech giants, Google stands alone. But the search engine behemoth now stands accused of anti-competitive behaviour, carried out to maintain its dominance in multiple cases in the US.

In 2020, the US Department of Justice, along with 11 state Attorney Generals, filed a civil antitrust suit against the company to “stop Google from unlawfully maintaining monopolies through anticompetitive and exclusionary practices in the search and search advertising markets”. In a statement made at the time, US Attorney General William Barr called Google “the gatekeeper of the internet” and said the lawsuit would strike at “the heart of Google’s grip over the internet for millions of American consumers, advertisers, small businesses and entrepreneurs beholden to an unlawful monopolist”.

In this case, the Department alleged that Google has established exclusivity agreements forbidding competing search engines from being preinstalled on devices, as well as forcing preinstallation of its own applications on devices and making them ‘undeletable’, and paying for preferential treatment for Google search on devices and browsers.

The Department alleged that Google’s behaviour violates the Sherman Antitrust Act, a key component of US competition law. This Act declares that contracts, combinations and conspiracies that restrain free trade, monopolisation, attempted monopolisation and conspiracy to monopolise, when found to be unreasonable, are illegal.

‘Neutralising and eliminating competitors’

Then, at the beginning of this year, the Department of Justice filed another civil antitrust suit against Google. In this case, the Department of Justice argued that Google has monopolised “multiple digital advertising technology products in violation of … the Sherman Act”.

The Department argued Google has engaged in anticompetitive conduct for 15 years through “neutralizing or eliminating ad tech [digital advertising technology] competitors through acquisitions; wielding its dominance across digital advertising markets to force more publishers and advertisers to use its products; and thwarting the ability to use competing products.”

By this means, the Department said, Google has established dominance in terms of the “tools relied on by website publishers and online advertisers, as well as the digital advertising exchange that runs ad auctions”.

The Department is seeking to “restore competition in these important markets and obtain equitable and monetary relief on behalf of the American public”.

The two cases have attracted plenty of attention, with one commentator calling the 2020 case “the most significant antitrust case brought by the DOJ since the late ’90s.” As the case makes its way through the court, there has been much discussion around the world about the implications for search and Big Tech more broadly – about what this might mean for Google’s power, and whether other tech giants need to be looking over their shoulders. Indeed, other cases targeting giants like Meta and Amazon for similar behaviour are already in the works.

But when Google is everywhere, what does this case mean for the future of search? And is what Google is doing illegal?

Jacqueline Downes, Partner at Allens, says Google’s conduct is “unlawful if it has a substantial negative impact on competition”.

“In Australia, the law is that it would be unlawful if it has the purpose or effect of substantially lessening competition. You can’t enter into exclusive arrangements if they’re going to have a substantial negative effect on competition,” she explains.

The practice of entering into arrangements for exclusivity that substantially lessen competition is what crosses the line in competition law.

“Companies obviously can compete on merits and on the merit of their service, and a service that just happens to be the best service and is innovative is not prohibited,” Downes says.

“Nobody’s suggesting that Google should be penalised just because it’s very successful in attracting users, but where you enter into arrangements with others that may entrench dominance by making it harder for consumers to use other search engines, that’s where it’s more difficult from an antitrust perspective.”

A matter of no choice

Researchers have concerns about Google that transcend its potential anti-competitive actions.

Dr Dana Mckay, Senior Lecturer in Innovative Interactive Technologies at RMIT’s School of Computing Technologies, is interested in the intersection of people, technology and information, and how advances in technology benefit society as a whole. She’s been following the Google case and believes “there’s a real tension when information the public needs is mediated by a single, large commercial entity”.

“Google’s continued dominance can be partially attributed to the well-known pattern of people not changing technological defaults. Google.com is the built-in search engine for a few smartphones; it’s essentially an automatic stream of customers,” Mckay says.

According to Mckay, the vast majority of people will not change a default that has been given to them.

“If their phone comes with Google as a primary search engine and they’re not forced to make a choice, they’re just going to use Google because that’s what’s there,” she says.

“Unless you present people with a choice, I don’t think they could even know there is one. And essentially, in this particular case, it’s about people not having been presented with the choice.”

Meanwhile, consumers’ continued use of Google means the company has accumulated large amounts of data about its users, which it can then harness for commercial purposes. In an alternate scenario where Google was not the dominant search engine, it may not have been able to gain that data – so McKay says she can see where the antitrust case has arisen from.

However, she says, it’s usually neither easy nor intuitive to switch default apps on devices, and people tend to stick with what’s been presented to them, especially on mobile devices. This isn’t to say the fault lies with them; rather, she said it’s down to tech companies to offer choices. And this, results, she says, in concerns about data and privacy.

“I don’t think that we can rely on people to take the path of most resistance [to switch apps voluntarily]. I think that’s an unreasonable expectation … people aren’t technologically experienced. It’s on the technology companies to provide them with the support of access to information to make the right choices for them.

“[Users] should have been offered a choice. They weren’t offered a choice … Google has amassed a bunch of data as a result.”

Search engine ethics

McKay said having a single default option for search can have other impacts too, especially on the type of search results – their depth, applicability to all users and usefulness – that users receive.

“The choices that an individual search engine makes affect the information that the people on the end of those choices get, which in turn potentially has positive or negative consequences for those people, depending on who they are,” she says.

“The search results [users] get are being shaped by the ethics and decisions of that company, which may reflect certain biases [or] may reflect certain preferences. Google, for example, is heading towards a very AI-dominated search and an approach that is trying to provide the right answer in the first result.”

At first glance, that may not seem like a bad thing, especially for simple queries like “where is the nearest petrol station?” But Mckay says, depending on the question, this may not be what a user needs.

“When we’re asking more complex questions, things like ‘what should I do to minimise my impact on climate change’… trying to guide people towards a single first answer doesn’t allow them to see the diversity of information they need to form an informed opinion,” she explains.

This is exacerbated by the proliferation of sponsored results at the top of the page of Google search results, Mckay adds.

“When the first result is a sponsored result … you’re not even necessarily seeing the best search result. You’re seeing who’s paid the most to answer your question,” she says.

“All of these decisions are decisions that are made for financial reasons, not for the benefit of the end user.”

Mckay has been researching how people change their minds about particular topics, and she says “diversity of information is good if you want people to think about their opinions”. She observes that search engines that approach complex questions by showing a variety of results prominently “might be more beneficial to society”.

Is it possible to have a socially responsible search engine company? McKay says this is a question she has long been asking herself – and ultimately, she admits, she doesn’t have an answer.

“Google has amassed a database of user behaviour and a massive index, and it’s given them a lot of power over society. When we think about national security, we worry about foreign regimes. [But] Google probably has way more power over Australian society than any foreign regime. And it’s a private company. So should we be asking instead for some level of access to or oversight of the information it holds about Australian people, about the choices that it is serving up to Australian people?” she muses.

“I would say the answer is probably yes.”

It would be reasonable to expect that tech giants act in the public interest – but, as Mckay says, what is “’public interest’ depends on your culture and your society and your particular regulatory framework”.

Any regulatory oversight, Mckay says, needs to strike a balance between the influence of both tech companies and the government on citizens’ lives. One possibility would be for those who are in oversight positions to be kept separate from the government, to enhance perceptions of their independence and trustworthiness. Their recommendations could be made available to the public, so that users can see what is being required of search engines, and their requests should be based on clearly defined principles.

“Transparency is key here,” she says.

Winners and losers

If Google loses the antitrust case in the US, Mckay says consumers may end up seeing a new option when they set up a new device, offering them an alternative search app. Google might also have to pay money to some competitors, but she said she doesn’t expect it to be “any more interesting than that”.

However, if Google wins, “nothing much will change”, Mckay says. She feels the social implications of the case could be more important for consumers.

“I’m concerned that if they win, essentially Big Tech will have carte blanche to … hoover up customers without people ever getting a choice – and that has some interesting and pretty serious social consequences,” she says.

“I think the licence to operate without being held to account isn’t a good thing from a social perspective – but the practical implications [of the case] could be very small.

“I think that maintaining that diversity in the tech ecosystem is really key.”

Downes believes the antitrust case could have implications for the operation of other digital platforms – “because there are a number of arrangements between them, and there’s a lot of scrutiny around the behaviour of those antitrust platforms and the way in which they take action or they conduct themselves in order to entrench their dominant positions”, she explains.

“That might have some implications more broadly for Apple and Meta and others in terms of the sort of conduct that they engage in and the sorts of deals that they do.”

Downes is confident that competition regulators both here and overseas will be watching the case closely, and said this ties in with current actions being taken by the competition regulator in Australia.

“The ACCC is … trying to push the government to adopt a framework for codes of conduct. The ACCC has already, in its report on search, indicated that default search engines are a problem for competition in relation to the search market. But the way the ACCC is trying to approach this at the moment is more akin to the EU and to the UK, [in that the ACCC] is still pushing the government to legislate and allow it to develop some codes of conduct; these may very well, for example, prohibit agreements that have default search settings.

“That’s the sort of thing they might look at doing, rather than trying to take very expensive and lengthy … antitrust actions to deal with the different problems that have come up in the platform space.”