The Remedy in the Google Comparison Shopping Case: Sensible and Doable

How Google can implement the remedy and comply

Following the issuance of the decision in the Google Shopping Case, Google and its surrogates have (unsurprisingly on their part) criticised various elements of it.  One of the elements on which their criticism has focused is the remedy.  In particular, Google has suggested that the fact that the remedy only provides for general principles and lacks detailed implementation provisions indicates that the Commission is unclear about what the infringement really is.  Google has also suggested that because of this lack of specificity, the remedy is unimplementable.

Any reader who wishes to form his/her own view about the remedy in the decision before it becomes publicly available may review the Commission’s invitation to tender for expert assistance in ensuring compliance with the remedies.[1]Our understanding is that this document’s detail on the remedy corresponds to the actual remedy in the Google Shopping decision.

Sensible

It’s not unexpected that Google would raise criticisms against the remedy in the Commission decision, but they are unfounded.  We have seen this movie before.  There is nothing particularly new or controversial about the Commission’s remedy in the Google Comparison Shopping case.  It’s exactly the same kind of remedy that the Commission imposed in its Microsoft decision in 2004.  Microsoft made the same arguments against that remedy before the General Court – arguing that it lacked specificity, that it meant Microsoft did not know what it needed to do to comply, and that it therefore was unimplementable.

However, the General Court upheld the Commission’s remedy, with the exception of the Commission’s imposition of a monitoring trustee, which the Court considered was an improper delegation of power to a third party and not something Microsoft could be asked to pay for – the likely reason why the Google Comparison Shopping Decision remedy lacks a monitoring trustee.  The General Court rejected the argument that a principles-based remedy requiring the infringer to make proposals on compliance was unimplementable, and did not find that such a remedy in any way undermined the strength of the substance of the Commission’s case.

For those who lived through the Microsoft case in the 2000s, it is difficult to avoid a sense of déjà vu.  Google is screaming murder over allegedly outrageous and unworkable remedies, just like Microsoft did at the time.

The truth is however that the Commission’s approach is entirely sensible, for a variety of reasons.  For example, Google knows its business best and can in good faith determine a compliant proportionate implementation.  Moreover, the remedy should be flexible and adaptable to changes in Google’s services and changes in technology, and allow Google to continue to innovate.

A principles-based remedy avoids the risk of the remedy being outdated and irrelevant soon after it is issued.  It would also be applicable for other vertical searches, like travel or local searches. By imposing such remedy, the Commission keeps its hands free from touching Google’s search algorithm.

Doable

Far from being unimplementable, the Commission’s equal treatment remedy is also entirely doable.  As noted above, the whole point of providing for a principles-based remedy is to allow Google some flexibility in its implementation.

Google has at its disposal a range of compliant options available to propose.  It could a) in theory do away with graphical features for all comparison shopping services including its own entirely, but b) equally and more likely, it could retain all the graphical features similar to the ones used now only for its own comparison shopping service (e.g., the so-called Shopping Unit, previously called by Google the “OneBox”) or even introduce new ones.

Any suggestion that the Commission’s remedy would force Google to return to a listing of blue links is a wilful misrepresentation of the remedy in an attempt to garner support against the Commission’s decision.  The only requirements imposed are that a) third party comparison shopping sites are not automatically demoted, and that any demotion mechanism to ensure site quality equally applies to Google’s own Google Shopping comparison shopping service; b) Google’s and third parties’ comparison shopping services are all ranked and enjoyed enhancements in terms of graphical and interactive features based on relevance to the search query.

Thus, for example, if Google chooses to show comparison shopping results in a box, with direct links to merchants, it must enable third party comparison shopping sites to do so as well, and which comparison shopping results are shown or not shown (including Google’s own) must be determined entirely based on relevance to the search query.  The same principle would apply to any new graphical or interactive features Google would introduce in the future.

The above could be achieved simply by subjecting all comparison shopping sites (Google’s own and competing ones) to Google’s general search algorithm.  In addition, Google already has in place the tools to allow competitors to provide all the necessary information (e.g., prices, product images, reviews, links to merchants) required so that they are also able to present their results in the same manner as Google’s own comparison shopping results. Hence, with minimal effort Google would be able to implement a remedy that would be compliant with the Commission’s decision.

As this should make clear, the remedy in the Google Comparison Shopping decision is both sensible and doable.

[1] The European Commission’s invitation to tender is available at http://ec.europa.eu/competition/calls/tenders_open.html