The EC's case against Google is a bad application of outdated laws

Outdated law

On one level, the European Commission’s argument with Google is unsurprising. The EC’s commissioner for competition, Margrethe Vestager’s job is to investigate possible breaches of EU competition law. That is exactly what she is doing with her official complaints against Google’s use of its Google Shopping service. Equally unsurprising, is the investigation of Google’s other possible breaches of its monopoly position with how it controls the use of its mobile operating system, Android.

One should also set aside the melodrama that accompanies such cases. News reports of the case have highlighted calls for the break up of Google as suggested by the European Parliament last year. The reports have also focused on the possible massive Euro 6 billion fine Google faces if the antitrust complaints are upheld. Finally, there is the fact that the case is the result of a conspiracy of competitors, led by Microsoft.

All of the drama however, masks what is going to be a protracted process that could take years, during which time the entire landscape that is being fought over could have changed, not once, but several times. Google themselves were at pains to respond to the accusations that they were harming consumers by pointing out that search was quickly being superseded, and that:

“People are increasingly using social sites like Facebook, Pinterest and Twitter to find recommendations, such as where to eat, which movies to watch or how to decorate their homes”

Whilst it may be true that Google has a monopoly on search of the Internet as a whole, that is certainly not the case when it comes to the “social web” which is well and truly dominated by Facebook, Instagram, Twitter and others. Likewise, Google may have dominated advertising on the desktop but that is increasingly not the case on mobile.

Law and trade policy operate on timescales that are always going to significantly lag technological change. As if understanding the full impact of an existing technology on consumers and competition was already not challenging enough, attempting to do this in the context of what will happen in even a few years is almost impossible. In fact, even determining monopoly in a technological market is not always straightforward. For example, even though Android controls over 80% of the world’s smartphone market compared to Apple’s share of 15%, in terms of mobile e-commerce, users of Apple’s mobile devices account for 5 times the value of Android users.

For all of the EC’s past actions against Microsoft, they were irrelevant in shaping what eventually happened in the market. The actions had no effect on Microsoft’s behaviours, and came as little-to-no benefit to consumers. As with the EC’s complaint against Android, the fact that software comes pre-installed does nothing to preclude a consumer’s ability to run alternative software.

The EC’s objections against Google again raises the more general issue that it is a futile exercise to use antitrust law to retrospectively try and influence the way the technology companies, and the digital economy as a whole, work. As with copyright and patents, the law has simply not been able to adapt and keep pace with the disruptive change brought about by technology and society at a global scale. It has led policy and law makers, and companies not wanting to adapt to change, to focus on the past and act as a break, rather than an enabler, of progress.

It would be a far better use of the EC’s time and resources if their energies were spent creating policy that enabled the digital economy that they profess to want rather than keeping their vision of it restricted to a time that has long since passed.