Relaxing whilst doing Competition Law is not an Oxymoron

The ‘Tu Quoque’ Fallacy – Some more thoughts on Commission v Google

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Heard at today’s GCLC lunch talk, seemingly in defense of Google’s search manipulation tactics: Bing is also linking preferentially to its own related services (maps, etc.). So the complainants, and Microsoft in the first place, should take a pass.

On further thoughts, this is a pretty weak argument.

First, the idea underpinning this argument seems to be that Google’s strategy is standard industry practice. And the upshot would be that Google’s conduct has a rational business justification. But the fact that a course of conduct is frequent within an industry, and that it has been replicated by rivals, does not make it presumably lawful. Many drivers breach the law by speeding everyday, yet this is no reason to hold their conduct lawful. Similarly, the fact that conduct is rational is not a cause of antitrust immunity. Collusion is often rational, yet it is strictly forbidden.

Second, this argument actually works in favour of Microsoft’s allegations. It is precisely because preferential placement of links on search engines has the ability to steal competitors’ market share – and in turn to foreclose – that Microsoft uses this strategy. But  Microsoft does this to penetrate the market and/or avoid market marginalisation. And there’s no cause for concern here: given Bing’s very low market share, the preferential placement of links at best yields minor foreclosure effects. You may call this procompetitive foreclosure. In contrast, Google has a paramount market position. Hence its conduct is likely to exert anticompetitive foreclosure effects.

On the link between the magnitude of dominance and the intensity of anticompetitive effects, see §20 of the Guidance paper:

“in general, the higher the percentage of total sales in the relevant market affected by the conduct, the longer its duration, and the more regularly it has been applied, the greater is the likely foreclosure effect”

And on the fact that not all foreclure is unlawful, see §22 of the CJEU ruling in Post Danmark:

not every exclusionary effect is necessarily detrimental to competition

Finally, the argument surmises that competition law should treat market players equally. But in this industry, Google is seems dominant, Bing not. Those two firms are thus in distinct situations, and the argument again does not fly. It is indeed well settled that pursuant to Article 102 TFEU, dominant firms are subject to a “special responsibility” (whatever this means) possibly for the reason set out in my second point. Like it or not, competition law imposes higher constraints on dominant firms than on non-dominant firms.

The sole possible way to make sense of this argument boils down to a moral issue, best expressed in the maxim: “nemo auditur propriam turpitudinem allegans”. But it is well known that this argument has no traction in competition law, which has no moral content, a point forcefully made by Bork – a late pro-Google advocate – in his early Antitrust Paradox. And this, in any case, would not bar the Commission from taking over the investigation on its own motion.

Overall, by trying to counter argue that Bing also manipulates search results, Google is falling into the well-known Tu Quoque fallacy.

PS: the Lunch Talk was great. We heard two economists, Anne Perrot and Cedric Argenton, speaking very clearly to lawyers. We also watched a lawyer, Alfonso, morphing into a complete hi-tech geek. The introduction of his presentation was simply hilarious. I rarely laughed so much at a conference. The slides will appear on the blog very soon.

PS2: link to the above pic here.

Written by Nicolas Petit

8 February 2013 at 6:49 pm

2 Responses

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  1. One of the significant challenges to enforcement against Google is what it means to “manipulate.” Google (and Bing) give priority to responsive links to their services because they believe customers are looking for services of that type (indeed, there would be no reason for concern if customers were not). Is that “manipulation?” Or is that a business rationale (i.e., those links make the search product more valuable and usable for consumers)?

    Google’s (and Bing’s) whole business is deciding what results to display in response to a given search. They have decided that, for example, someone who searches what looks like an address may want a map. It would be a strange rule that says Google cannot recognize that user desire and show a map.

    Now, perhaps the rule should be that it must show multiple maps (but who gets to decide which ones?) or can’t show its own maps at all, but it’s difficult to me to see those rules as less of a “manipulation.”

    Much of the commentary (perhaps including that of Prof. Petit) seems to assume that there is some “pure” or “unmanipulated” set of results that Google could just show instead. I don’t think that’s right. Google is constantly making choices about what to display.

    Adam Miller

    8 February 2013 at 7:56 pm

  2. […] Will the EC care whether Bing is doing it too? […]

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