Notes

Google's comparison-shopping service is one of Google's specialised search services. In response to queries, it returns product offers from merchant websites, enabling users to compare them.

Specialised search results in a particular category are positioned within sets referred to by Google as "Universals" or "OneBoxes". They are in most instances positioned above generic search results, or among the first of them. In addition to the results returned in "Universals" or "OneBoxes", Google's specialised search services can also be accessed through menu-type links displayed at the top of Google's search results pages. Certain of Google's specialised search services are based on paid inclusion. Third party websites have to enter into an agreement with Google in order to be listed in the search results of such a specialised search service. In most instances, such an agreement provides for a payment based on a pay per click system. This is the case for instance for Google Shopping.

The practice

• The practice: "the more favorable positioning and display by Google, in its general search results pages, of its own comparison-shopping service compared to competing comparison-shopping services... infringes Article 102".
• Commission's decision: "The Commission concludes that the Conduct constitutes an abuse of Google's dominant position [...] because it constitutes a practice falling outside the scope of competition on the merits".

The Panda Algorithm Google Search favored Google shopping by applying the "PANDA" algorithm only to rivals -- "comparison-shopping services are prone to being demoted by the Panda algorithm due to the characteristics inherent to those services"; "Google's own comparison-shopping service is not subject to the same ranking mechanisms as competing comparison-shopping services, including adjustment algorithms such as [...] Panda. This is despite the fact that Google's own comparison-shopping service exhibits several of the characteristic that make competing comparison-shopping services prone to being demoted by the [...] and Panda algorithms".

Google shopping benefits from a better display - "Competing comparison-shopping services can be displayed only as generic search results in Google's general search results pages. They cannot therefore be displayed in rich format, with pictures and additional information on the product and prices. The stated behaviors are considered Manipulation as:

• Website cannot survive if they lose traffic.
• Given the dominant position of Google Search, the rivals of Google Shopping must work with Google Search.

Thus, Google's behaviour is exclusionary because:

• It increases the costs that Google Shopping rivals incur to access the market for comparison sites.
• It makes the dominant position of Google Search stronger.

And, Google's behaviour is anticompetitive; it reduces consumer welfare by:

• Increasing the fees due to merchants who conclude contracts with Google Shopping
• Increasing consumer prices in the market for comparison site
• Reducing the incentives to innovate for competing comparison sites and Google Shopping itself.

Now - the U.S. Experience

• Since 2002 sponsored links must be make recognizable by consumers.
• In 2013 the FTC charged Google with monopolization because of the Universal Box. Yet, it found that this innovation increased CW, by offering consumers direct answers in a faster way. Thus, Google won the case, regardless the exclusionary effects of its practice.

Thus...

No favoritism as to the order of results - "Google would demote its own content to a less prominent location when a higher ranking adversely affected the user experience". No favoritism as to their display - "other competing general search engines adopted many similar design changes, suggesting that these changes are a quality improvement with no necessary connection to the anticompetitive exclusion of rivals".

Hence, no manipulation occurred. In addition,

Consumers go a better service - "user benefited from these changes to Google's search results ... these changes to Google's search algorithm could reasonably be viewed as improving the overall quality of Google's search results because the first search page now presented the user with a greater diversity of websites".

Exclusion resulted from merits - "[demoting some competing comparison-shopping services] resulted in significant traffic loss to the demoted comparison-shopping properties, arguably weakening those websites as rivals to Google's own shopping vertical".

Furthermore,

We cannot chill innovation - "Product design is an important dimension of competition and condemning legitimate product improvements risks harming consumers".

There is no single way to order results - "Reasonable minds may differ as to the best way to design a search results page and the best way to allocate space among organic links, paid advertisements, and other features. And reasonable search algorithms may differ as to how best rank any given website".

Antitrust authorities cannot forbid unilateral practices as long as they admit redeeming virtues - "Challenging Google's product design decisions in this case would require the Commission - or a court - to second-guess a firm's product design decisions where plausible procompetitive justifications have been offered, and where those justifications are supported by ample evidence".

Data Access

Now, the Data Value Chain, to enable firms to hold and exploit data we need to:

• Make Data Access be easier (Can competition law make data access be compulsory?).
  • Unlawful refusal to deal, an EU institution can oblige a dominant firm to share its proprietary resources in two alternative scenarios:
    • When the refusal terminates an existing business relationship, if:
      • The refusal is likely to have a negative effect on competition
      • The conduct does not have any objective justification
    • When the refusal prevents a new business relationship from starting, if:
      • The refusal is likely to have a negative effect on competition
      • The conduct does not have any objective justification
      • The claimed resource is indispensable.
  • Essential facility

Input foreclosure: Can we apply the Essential Facility Doctrine to Big Data? We should have:

• A dominant firm that refuses to share its data without proffering any objective justification.
• Without the data the firm cannot design a new product/ enter a new market/ foster technical progress without the dominant firm's big data, which indeed are essential! (How can a rival know what she is going to design, if she does not know the data ... and the information that can be inferred from them? And what if that information could be inferred from other sets of data?)
• Incentivize Data Production (Classes on Data&IP).
• Support Data Trade (Classes on Data&IP).