(This is a guest post from Professor Mark R. Patterson of Fordham Law School. As someone who has participated in panels on antitrust with Prof. Patterson, I thought our readers would be interested in his perspective. –Frank Pasquale.)
The two claims above, from an essay by James Grimmelmann, are at the center of the conflict over regulation of search engines. Some argue that Google is a powerful gatekeeper for competing firms’ access to customers, so that it must operate in an objective or neutral manner to preserve a level competitive playing field. Those who make this argument necessarily assume that we can assess objectivity or neutrality in this context. Others, like Grimmelmann, support the first statement above, arguing that there is no objective, neutral means of assessing search results, so that there is no way to regulate search engines.
The European Commission (EC), having investigated Google’s practices and concluded that there are “competition concerns,” is apparently on the pro-regulation side, because it is entertaining proposed commitments from Google to address those concerns. (The U.S. F.T.C. conducted its own investigation and closed it without action, concluding that there was insufficient evidence to support the claim that Google’s practices lacked a legitimate business justification.) Google proposed a first set of commitments to the EC in April, but the Commission received “very negative” feedback from a market test of those commitments, so it asked Google for an improved proposal. Last month, Google proposed a second set of commitments. This new proposal was not put to a market test. Instead, the EC sent private inquiries to the complainants in the case and other market participants. Nevertheless, the proposal was leaked, and it offers much food for thought.