Google and the right to manipulate search results

Yesterday, Google won an important judicial victory: a court accepted that its Search Engine Page Results (SERP) constitute a publication, and as such are protected by the First Amendment of the US Constitution, which guarantees free speech.

The case dates back to 2012, when Google tasked Eugene Volokh, a renowned legal expert in freedom of expression at UCLA, to put forward the case that SERPs were an expression of Google’s opinion as to what its users considered relevant, and therefore were covered by the First Amendment.

The judicial ruling upholding this argument will have far-reaching consequences: Google is no longer just a search engine as well as being a company that produces information, and so can derive important benefits from prioritizing the results of its products (price comparisons, maps, etc.) over those that are obtained directly by its algorithms, the so-called “natural results”.

In the European Union, Google reached agreement in February 2014 whereby it promised to accompany the results of its own specialist search services with those from three of its competitors. This deal was subsequently reconsidered by Joaquín Almunia when the plaintiffs provided evidence that this was not a valid solution, at the same time as another anti-trust case was brought based on Google’s domination of the cellphone market due to its ownership of Android.

Yesterday’s ruling means that Google will avoid these kinds of problems in the US market by establishing that the right of search engines to editorialize their results pages as they see fit, eliminating any concession to what has become known as search neutrality. For Google, this means that it can put what it likes on its pages without fear of being sanctioned for its dominant position. For its competitors it means that in a US market dominated by Google searches (67%), it will be very difficult to compete in terms of access to information: if your business consists of facilitating users with any type of information, what’s going to happen most of the time is that they’re going to find Google’s results faster than yours, as Jeff Jarvis pointed out in “What Would Google Do?”: “no matter what you do, Google will end up doing it better and for free”. And if that isn’t a monopoly, then I don’t know what is.

Above and beyond the discussion of whether a page of search engine results can be considered editorial content, what really stands out here is the paradox whereby before Google came along, almost all search engines were editorialized: the companies that ran them considered it perfectly normal to take the top results and sell them to the highest bidder, to those who wanted to put their products and services in front of people looking on the basis of particular words.

It was actually Google who changed all that, becoming the boss by applying the following concept: rather than giving people what a third party had paid for them to see, it gave them what was genuinely more relevant on the basis of a specially designed algorithm.

Now, more than 16 years later, Google has used the law precisely to allow it to editorialize the results of searches so that instead of us finding the most relevant results, we first find those that offer its services. Not those of other companies, however relevant they may be. Theirs. In other words, a world filtered through Google’s prism.

We have traditionally chosen Google precisely because its results are relevant and not editorialized, but now, we find that precisely the opposite has been enshrined in law.

Google’s legal triumph upholding its predatory monopoly reflects a number of things, none of them especially positive:

1. In the United States, the laws are written by those who can afford the biggest lobbies: Google invests more than $18.2 million a year in lobbying, making it the eighth biggest lobbyist in the world, and the number one in the tech field. It didn’t take this nice geeks long to realize how the world really works.
2. But Google is making the same mistake that Yahoo made: its catalogue was what made it a success, and that has now largely gone. Google has reduced the space that natural results occupy to around 20% of the screen area, filling the rest with advertising and its own products.
3. There is no comparison between today’s entry barriers and those of 15 years ago: the web is several times larger, and few companies would now be able to build a sufficiently large data base to compete with Google. The idea that “in some garage somewhere, an entrepreneur is creating a search engine that will make us obsolete in a market that knows no loyalty,” the Google founders referred to in their MBA Honoris Causa acceptance speech at IE Business School is no longer true.
4. Google’s domination of the market is built on superior technology that no startup could hope to develop, and the company knows it. It is editorializing its results, contrary to what users might want, or worse, assuming that it knows what’s best for us, quite simply because it can, safe in the knowledge that no competitor is about to come out of the blue to endanger its supremacy.
5. If you used to like the ten blue links, the old Google results page whereby you could work your way down based on your own criteria, too bad. It’s gone forever. Google results pages have been morphing into “something else” for some time now, and after yesterday’s verdict, the transition will be even speedier. Google wants to reduce our choices and make sure that we click only on its products.

And if you don’t like it, you know what you can do.

(En español, aquí)