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’Neutral’ Search as a Basis for Antitrust Action?

Marina Lao, Harvard Journal of Law and Technology, Vol. 26, No. 2, 2013.

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The Federal Trade Commission recently voted unanimously to close its antitrust investigation into Google’s search practices after concluding that the firm’s practice of favoring its own content in its search results did not violate U.S. antitrust laws. The agency determined that, although the practice (often called “search bias”) may have an incidental negative impact on some competitors, it was a product improvement that likely benefited consumers. Additionally, it concluded that Google did not selectively change its search algorithm to exclude competition, and any disadvantage to competing websites was the collateral result of changes that likely improved the quality of Google searches.

By declining to bring a case after determining that Google did not manipulate its search algorithms and search results pages to target particular competitors or to thwart competition, the FTC seemed to have implicitly rejected the notion that Google has a duty to adopt search “neutrality,” as some have advocated. Search neutrality is generally understood to mean that a search engine should not prefer its own content in search results unless its own content is “objectively” superior to competing content based on the use of a “neutral” search algorithm.

I suggest, in this essay, that the FTC’s decision was correct. It is difficult to build an antitrust case (against any major search engine) around the notion of search neutrality for several reasons: first, search is inherently subjective and it is unclear what would constitute a “neutral” standard or algorithm, and who would or should have the right to make that judgment; second, there appears to be no identifiable antitrust theory of liability that would require neutral search, and the paper analyzes the essential facilities doctrine to explain why it is a poor fit; and third, any remedy imposing some form of neutral search is likely to be more harmful to consumers than the incidental exclusionary effects that the remedy is supposed to correct.

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