Article by Dibya Prakash Behera & Vishal Rajvansh,
Introduction
The increasing usage of technology, disruptive innovation has become a tool in the hands of the new and emerging market players to grab a market share. A growing body of evidence suggests that Google is manipulating people’s thinking and behavior from the very first character people type into the search box. In 2016, biased search results generated by Google’s search algorithm likely impacted undecided voters in a way that gave at least 2.6 million votes to Hillary Clinton. Such practices when adopted in commercial world gives rise to anti-trust concerns. However, the competition law regime in India has recently found itself in muddled waters in dealing with the market practices involving the extensive use of technologies, especially the usage of search algorithm by Google.
Google and Biased Search Algorithm
Imperatively, no private company is vested with either the right or the power to manipulate large populations without their knowledge yet data collected since 2016 show that tech giant Google displays content to the American public that is biased in favor on one political party. A recent research shows that if there be no system to keep an eye on Google, the Big Tech will be able to shift upwards of 15 million votes to that candidate it favors with no one knowing and without leaving a paper trail.
Google shares its index with everyone in the world, but only for single searches. It is equally pertinent to require Google to share its entire index with outside entities dealing in businesses, nonprofit organizations, even individuals, through what programmers call an application programming interface, or API. Google already permits this kind of sharing with a selected few, most notably a small but resourceful company based in Netherlands called Startpage. Breaking up Google’s search engine would give us a smattering of search engines that yield inferior results. A recent research demonstrates that Google’s “autocomplete” search suggestions can turn a 50/50 split among undecided voters into a 90/10 split without people's awareness.
CCI and Search Bias Order: Missed Opportunity
In a noteworthy instance, the Competition Commission of India (CCI) after a fairly long wait brought an end to the allegations of search bias against Google. Notably, in the case of Re: Matrimony.com. v. Google LLC and Ors. the informants viz. Matrimony.com Limited and others leveled allegations against Google that it has been running its primary business of search and advertising business in a rather discriminatory manner jeopardizing the business interests of the customers. Particularly, they alleged that Google has been promoting its own vertical search services manipulating its search and quality score algorithm.
Interestingly, CCI imposed a hefty fine of INR 136 crore on Google for abusing its dominant position in the market of ‘Online search advertising services', as was determined by the Director General (DG) and CCI. Although the order superficially makes a huge step to deal with the issues grappling the digital economy, it has actually been rendered as a testament to the difficulties stumbled upon by the CCI in dealing with the anti-trust concerns. An investigation by DG revealed that Google has been using a specific set of algorithms to ensure that its consumers are actually swayed away to its services such as Google News, Google Maps, Google Flights, YouTube among others by blending these with its General Web Search Services. The CCI held that such practices are actually unfair as the display of universal results was limited to certain ‘fixed positions’, creating a misleading notion that such results were in order of relevancy. However, adding a caveat and accepting the contention of Google that post 2010, floating ranking for news results, image results, and local results has been introduced, CCI limited the order only for prioritizing search results before 2010.
Exposing the vulnerability of the regulatory body, it was categorically mentioned in the order that the DG has been unable to record any finding qua the fully-floating ranking of Universal Results that Google currently uses. In respect with the Universal Results, it was opined that intervention of the regulatory body was not called for when changes in the system has been bought by Google in 2010. The primary reason for such a decision on this point could be attributed to the fact that the CCI and the DG although tread on the similar approach of the European Commission (EC), has failed to follow the methodology devised by the EC in a similar case. Notably, the EC in a similar case fined Google €2.42 billion for abusing dominance as a search engine by giving illegal advantage to own comparison shopping services. However, the EC in arriving at such a conclusion relied on and evaluated a large bundle of evidence including significant quantities of real-world data with around 5.2 terabytes of actual search results from Google. Moreover, a comprehensive analysis of questionnaires which EC has addressed to several hundred companies and experiments and surveys related to the impact of visibility in search results on consumer behavior was taken into account to arrive at such findings. Nonetheless, the CCI's decision of evading any possibility of providing an objective criterion for remedy also fails when it could have ordered for further investigations aiming at true disclosure of the algorithm process working behind such search results.
Conclusion
The use of an algorithm, apart from being helpful to avoid the microscopic lens of the CCI, has the potential to disrupt the economy. The lack of involvement of any human element in anti-competitive agreement and anti-competitive practices seems to be taking undue advantage of such a grey area. The Google search bias order along with the recent probe into the algorithm price-fixing by the airlines which is expected to be again in the favor of the business entities are testaments to such findings. In this regard, the time is apt for the CCI not only to follow the footsteps of EC in ordering for probe but also to follow the methodology of decision making.
Having a more than majority control of about 92 percent of search worldwide, Google poses some serious threats, the three biggest threats that Google tosses to societies worldwide are barely affected by almost any intervention: the aggressive surveillance, the suppression of content, and the subtle manipulation of the thinking and behavior of more than 2.5 billion people. Fortunately, there exists a simple way to end the company’s monopoly without breaking up its search engine, and that is to turn its “index”—the mammoth and ever-growing database it maintains of internet content—into a kind of public commons. It is backed by precedents both in law and in Google’s business practices.
However, the CCI yet doesn't seem to be well equipped to tackle the advanced technological adaptation by the internet giants such as Facebook and Google. This can be substantiated by the fact that unlike its European Union or Japanese Counterparts, CCI has been less active on this front to tackle the anti-competitive practices by the tech giants. Moreover, CCI being a regulatory authority ought to follow a fair mechanism that lays down the rationale for deterrence of dominance in market so that ‘rational orders’ are expected which can be applied to create a robust competition culture that suits a diverse economy like ours which requires extremely cautious and responsible regulation to maintain healthy competition to prevent exploitation by technologies like search algorithm.
Authors Bio
Dibya Prakash Behera is an undergraduate student pursuing B.A. LL.B (Corporate Law Hons.) at the National University of Study and Research in Law, Ranchi. He has an avid interest in Competition Law and Taxation and presently serves as the Student Coordinator of Recruitment Coordination Committee and member of the Moot Court Committee. Besides that, he also holds the position of Manager-cum-Editor at the Indian Review of Corporate and Commercial Law Blog.
Vishal Rajvansh is an undergraduate student pursuing B.A. LL.B at the National University of Study and Research in Law, Ranchi. He possesses a keen interest in Corporate and Competition Law and is also a member of the Internship Coordination Committee and the Moot Court Committee.