The Google case: "searching" for the consequences

In a historic antitrust judgment, US judge Amit Mehta ruled that Google breached antitrust law in an effort to maintain their monopoly in search engines. This monopoly is not only problematic from the perspective of antitrust law but also raises many privacy related questions, given that these searches contain large amounts of personal data which are now centrally collected by the same company. This means that this decision, although being prima facie about antitrust law, will have an impact on most internet users and their privacy.

In this context, Magali Feys, specialized in IT and consumer law, data protection expert and founder of AContrario, was asked to provide further clarification on this decision and its consequences by ‘De Morgen’: https://www.demorgen.be/tech-wetenschap/na-ingrijpende-veroordeling-van-een-van-s-werelds-bekendste-bedrijven-mogelijk-verdwijnt-google-zoals-we-dat-vandaag-kennen~be7cf9c6/

To illustrate the importance of this case, reference could be made to cases brought against Microsoft in both the US and the EU, some 20 years ago. In these cases, Microsoft’s practice of ensuring Microsoft software products (Media Player, Internet Explorer, etc.) were preinstalled together with the Microsoft Operating System in computers through exclusionary contracts, thereby severely limiting the alternatives available to consumers, was challenged. Although the conviction of Microsoft in these cases was based on their monopoly in Operating Systems, after the decision there was a marked decline in the use of Internet Explorer (although there are many additional external factors which could have played a decisive role in this decline). Whatever the reason, Microsoft has never managed to recover this loss in browser market share[1] and this decline was accompanied by a large increase of Google Chrome usage.

This leads us to the current case, where the judge ruled that 90% of world wide web searches nowadays happen through Google (although it should be noted that this number was heavily contested by the lawyers of Alphabet, Google’s mother company. They argued that searches on platforms like TikTok, which would have lowered Google’s share substantially, were wrongly not included.) By paying exorbitant amounts to companies like Apple and Samsung, Google ensured that Google Chrome was preinstalled as default browser on Apple and Samsung devices. This created a vicious cycle wherein Google paid to ensure its dominant position and used that dominant position to gather more information (and personal data), thereby improving their service and making even more money. This is why Google’s submission that their monopoly was simply the result of their ‘superiority’ is irrelevant, even if they are objectively superior to other search engines.

Although it should be noted that there has been no decision on a specific measure and Alphabet has already made clear that they intend to appeal this decision, some preliminary observations on the possible consequences and effects of judge Mehta’s judgment can already be made:

The possible measures that Google faces can have far reaching effects on the company, the way in which it does business and the way in which we use the world wide web. This is because the States which are party to the dispute have argued for structural relief, a measure which could entail a ‘breakup’ of the company, through divestiture for example. It should be noted that certain authors have warned against possible negative side effects (such as loss of value) when enforcing a breakup in cases like Google’s.[2] Given that Google uses their contracts with Apple and Samsung to enforce their monopoly, it is likely that measures which target these exclusionary practices will be taken (one possible (non-structural) measure is the removal of defaults for example). However, other theoretical structural measures such as information pooling[3] could possibly also break the vicious cycle discussed above, enhance competition and could eventually lead to a change in the way Google is run and composed.

One thing is for certain, this is not the last blogpost that will be written on this subject. The following months will bring more clarity on the possible consequences and far-reaching effects of this decision, which will need to be closely watched.

[1] Hovenkamp, Herbert. (2021). Antitrust and platform monopoly. Yale Law Journal, 130(8), 1952-2051.

[2] Hovenkamp, Herbert, Structural Antitrust Relief Against Digital Platforms (February 8, 2024). Journal of Law and Innovation (2024), U of Penn, Inst for Law & Econ Research Paper No. 23-44, Available at SSRN: https://ssrn.com/abstract=4616175

Hovenkamp, Herbert. (2021). Antitrust and platform monopoly. Yale Law Journal, 130(8), 1952-2051, p. 2008

[3] Hovenkamp, Herbert. (2021). Antitrust and platform monopoly. Yale Law Journal, 130(8), 1952-2051, p. 2011